When is Probate Not Required in Ontario?

If you’re looking to sell someone else’s home, or selling an inherited property, you may require probate to do so. However, from a legal angle, there are certain instances when probate is not required in Ontario. To help you navigate this potentially difficult time, we will discuss what probate is, when probate is required, and when probate may not be necessary.

As a full-service real estate team that works with all kinds of clients (including those who are selling a parent’s or loved one’s house), we’re well acquainted with probate, executorship, and how these elements impact sellers.

Given how long and complex the probate process can be, you’ll want to know whether or not it will be a mandatory step based on your personal circumstances. We’re here to help.

What Is Probate?

Before talking about when probate may not be required, let’s first explain what probate is and why it’s necessary.

When someone dies, their personal belongings become part of the “estate”. This can include all kinds of things, from minor items like family heirlooms to major assets like a house. With that in mind, you can’t simply start throwing away, divvying up, or selling parts of a person’s estate just because they’re deceased – at least not without formal permission.

Under Ontario law, the distribution of someone’s estate can only be handled by a designated executor or estate trustee. That’s where probate comes in. Probate is the legal process of naming someone as an executor or estate trustee.

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When is Probate Required?

In the event of someone’s passing, probate is required 99% of the time. This is because there is an estate that someone will need to look after.

However, one significant instance where probate does not apply is if the individual is still alive. Sometimes a person is unable to make decisions for themselves due to health reasons or other issues. When this happens, loved ones can make binding decisions on their behalf, once again with the right permission – known as power of attorney.

When is Probate Not Necessary in Canada?

In terms of estate management, probate is almost always required. However, there are some exceptions. Occasionally, someone who passes away will have a very small number of assets or belongings to their name. In some of these instances, the Province will decide that the estate is small enough that appointing a formal executor is not necessary.

There are also examples where probate may apply, but not be relevant to all assets in the estate. For instance, if the deceased is survived by their spouse probate will still be mandatory, however, shared assets like the matrimonial home won’t be part of the estate. If the remaining spouse chooses to sell the house, they won’t likely need probate first.

Rarely, bypassing probate can also be possible with strategic and forethoughtful estate planning. That said, this requires the expertise of a family lawyer and may only apply in very specific circumstances.

Can I Sell My Deceased Parents’ House Without Probate?

If you’re hoping to sell someone’s house without going through probate, you may be out of luck. Probate can be a hassle, but it’s usually necessary – no matter how close you are to the deceased.

It’s a common misconception that you will automatically inherit your parent’s (or parents’) estate just because you are the next of kin. Yes, if you are in this position, you will most likely become the executor, however, you still need to apply for probate before you can assume the role.

Another common misconception is that probate won’t be required if someone is preemptively named an executor or trustee in the deceased person’s will. Unfortunately, this isn’t the case – although the probate process can be more efficient. Even if the will expressly designates someone as an executor, that person must still apply for probate and receive formal confirmation before they can begin managing the estate.

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How Do I Apply For Probate?

The first step in the probate process is deciding who will do it. Usually, it’s a family member, however, it doesn’t need to be. Close friends and other loved ones can apply for probate if no one else has stepped up.

After that, there’s the actual application process, which involves completing and collecting the necessary documentation, notifying beneficiaries, submitting your probate application to the Provincial Court, and paying the applicable fees (aka the estate administration tax).

While dealing with the death of a loved one can be overwhelming for many reasons, it’s a good idea to begin the probate process as soon as you’re ready to. This is because applying for probate and getting approval can take multiple weeks or even months.

Searching for a real estate agent who can help you sell a loved one’s home? We’re here to help. Call us at 416-571-2724 or email info@arciteam.com to get started.