How do you know when to move forward on probate?

Probate is the legal process to get Court approval for the person responsible for administering the estate, known in Ontario as the estate trustee.

If there is a will, usually the person with the first right to apply for probate is the executor named in the Will, and if they are not able or willing to act, then the alternate executor. 

If there is no Will or the named executors are unwilling or unable to act, it is still possible for someone to be appointed the estate trustee, however the process is more complex and involved.  

When to file

There are two key issues to determine with respect to probate timing:

• • Is probate necessary at all?  This depends on whether probate is required to administer any assets of the estate.  Often, probate is not required in order to administer jointly owned assets and assets that pass directly by beneficiary designation like life insurance, RRSPs, RRIFs, and TFSAs, and assets that pass directly by legislation like pensions.
  • If probate is necessary, when to apply? If probate is required, the executor named in the Will or person intending to act as the estate trustee should apply ‘as soon as practicable’ and ‘in a reasonable time’.  

A timeframe spectrum:

The appropriate and permissible time to apply for probate is not fixed.  It is a spectrum.

It is unreasonable for beneficiaries to expect an executor to apply for probate within a few days after the death of a loved one.  People are entitled time to grieve.  Morever, usually there is little to be gained or lost by an extremely quick probate application.

On the other hand, eventually an executor should add within a reasonable period of time or expressly renounce.  At some point, failing to act becomes equivalent to refusing to act.

For example, barring exceptional circumstances, deferring probate for a year or two is too long.  Certainly, it creates significant risk of mismanaged assets and very disgruntled beneficiaries.

A court may deny a trustee who has been very slow to act some or all of their estate trustee compensation.  Again, a spectrum applies – it is unlikely that a Court will deny a trustee all of their compensation for a modest delay like 12 months, while it is very likely that they will reduce compensation drastically for very long delay like 60 months.

We are very experienced dealing with inactive trustees, and accessing the tools necessary to force action and proper administration of estates.

After probate, administration takes time

Administration of an estate – even a very simple estate – can take a surprisingly long time even if the estate trustee acts competently and quickly.  A delay of up to 24 months is not uncommon at all because of factors beyond the control of the trustee.  This is why it is important for the trustee to be diligent and persistent, but also why it it is important for beneficiaries to distinguish ‘inevitable delays’ caused by third parties from delays that are caused by fault or negligence of the estate trustee.

Some of the most common causes of delay that the estate trustee has little control over include –

• Court delays approving the probate application.  Delays in various courts range from a few weeks in locatiions like Ottawa and Brampton, to more than 8 months in Toronto (which is truly a reprehensible failing by the Government of Ontario).
• Income taxes.  There are delays at several stages of ensuring that all income taxes are paid.  Sometimes, the trustee must wait until the end of a tax year before filing a return.  There are always delays with the processing and assessment of income tax by CRA.  Then, there are delays associated with securing a clearance certificate.
• Banks.  Canadian banks are extremely slow to process estate requests.  Bad service is the norm, not the exception, and it can often take months for the banks to process properly completed requests.
• Finding and gathering other assets. It can take even the most persistent trustee to find potential assets (such as unused bank accounts and old insurance policies), find out if they remain assets that belong to the estate, and provide the necessary documentation to secure payment.  Some organizations, such as the Bank of Canada are shockingly slow to respond to properly filed applications.

A trustee can minimize delays by ensuing that all applications are filed properly as quickly as possible without errors or omissions.  This includes probate applications, and all other steps through the administration.  That is why most trustees engage experienced professionals to assist and guide them through the process.  

Miltons Estate Law – Probate and Estates Law