As an estate administration lawyer in Cornwall, Ontario, one of the most frequent questions clients ask me is, “How long does probate take?”
Probate isn’t the actual legal term in Ontario any longer, but we use it commonly to refer to the process of obtaining a Certificate of Appointment of Estate Trustee (with or without a Will), and the lengthier process of realizing assets and administering an estate.
When my office gets the call that an individual has passed away, we try to meet with the estate trustee (and sometimes with other loved ones and beneficiaries) as soon as possible. In that initial meeting, we review whether the deceased had a will, if the will can be located, if the will is the last will and is valid, and what assets the deceased owned on death. This is the investigation stage, where we are collecting the information that we need to complete the application to court, and whether a court application is needed at all. Not all estates require probate, and a lawyer can review and advise if probate is needed.
Normally, the process of getting the application ready for court shouldn’t take too long for a law firm experienced in dealing with estates matters. Often delays will come from waiting for information from third parties, or possibly for consents or renunciations from beneficiaries or estate trustees who are not prepared to take on the task. We need to collect all the facts and take care of some preparatory issues before we can submit the application. In my office, we can usually gather the information and complete the application in a week or two, but sometimes we are waiting weeks or months for information from other places.
Once the application is submitted to court, the time it takes for the court to have a judge sign it varies widely. Judicial resources are required to process the applications that each court receives. If the application is not full and accurate, this can cause major delays. It is important that your lawyer is familiar with all the rules and can complete the application accurately and efficiently. In the Cornwall area, sometimes an application can be returned within a week or two, while other times, it can be over two months.
Once the application is returned from the court, we have the Certificate of Appointment and the estate trustee is now in a position to deal with the assets of the estate. Typically, this does not mean that the estate trustee can write cheques to beneficiaries immediately. Assets need to be realized – accounts closed and funds transferred, homes and personal property sold, et cetera. It is rare for an estate to be in a position to make payments to beneficiaries until several months after the death.
Once the estate trustee has started to realize assets, he or she also needs to deal with taxes. The deceased’s income taxes need to be completed, and the estate will also have income taxes to deal with. Some assets will create tax liability on the estate when they are realized. As a result, often the estate is on hold until tax filings are completed and Canada Revenue Agency has advised if there are any taxes owing. The tax issues typically take the longest to resolve, even in simple estates.
With all of these steps, it is not at all unusual for beneficiaries to have to wait a year after death for some of their inheritance. Typically, part of the estate will be held back and not distributed until all the tax issues are resolved. On some estates my office has dealt with, we have waited two or three years after death for taxes to be completely resolved and, at that time, the estate can be finalized and our file closed.
Michele R.J. Allinotte is the owner of Journey Law Professional Corporation in Cornwall, Ontario and she helps her clients make the best decisions for themselves, their families and their businesses. Her practice focuses on the areas of business law, estate planning & estates and real estate. Visit www.YourCornwallLawyer.com for more information or to make an appointment.