Updates to wills and applying for probate
The following excerpts are taken from On The Radar newsletter.
There have been some important changes related to wills and applying for probate.
Getting married no longer cancels a will
Before January 1, 2022, when someone got married, their will was automatically revoked. This meant that the will stopped being valid. It was as if the will was never made.
Since January 1, 2022, when a person gets married, their will is not affected and continues to be valid. But to make their new spouse a beneficiary, the person must update their will or make a new one.
Separation is now treated the same as a divorce
Before January 1, 2022, separating from a spouse did not automatically change a will. This meant that if a person left property to a separated spouse in their will, that spouse would still get the property. To change this, the person had to update their will or make a new one.
Since January 1, 2022, when someone separates, their will is treated as if they got a divorce. This means that, like a divorce, a separation cancels any gifts made to the ex-spouse in the will.
What it means to be separated
In estates law, being separated or “living separate” is now defined as spouses who:
are living separate and apart for 3 or more years, or
have resolved their family law issues through a separation agreement, court order, or arbitration, and are still separated when one of them dies.
How to make or update a will
If a person wants to add their new spouse as a beneficiary or make any other changes to their will, they can:
make a new will, or
make a codicil to change their will.
A codicil is a separate legal document that's made the same way as a will. It's usually used when there are small changes to the will, for example, adding or removing a beneficiary or changing an estate trustee.
Ways to make a will:
Use CLEO's free online tool Guided Pathway for making a will.
Write a holograph will completely by hand and signed at the end.
Buy a will kit based on Ontario law.
Hire an estates lawyer.
Getting help with a will
People with low incomes might be able to get help from the Queen's University Elder Law Clinic or a local community legal clinic.
There are also services, such as Axess Law, that offer legal services at lower rates.
Applying for probate
Probate is a process that asks the court to confirm that a will is valid and that the estate trustee has the right to deal with the estate. If the court agrees, it issues a certificate.
There are new forms to use when applying for probate. The forms are the same whether:
there's a will that names an estate trustee, or
there's no will.
How to apply for probate now depends on the value of the estate. If the value of the estate is:
$150,000 or less, use the simplified small estate court process
more than $150,000, use the regular court process
Simplified small estate court process
These are the forms that must be completed:
Form 74.1A Application for a Small Estate Certificate
Form 74.1B Request to File an Application
Affidavits as required, for example, the Form 74D Affidavit of Execution or Form 74E Affidavit of Condition
Form 74.1C Small Estate Certificate
Applications are usually processed more quickly than in the regular court process.
Regular court process
Starting January 1, 2022, people must use Form 74A Application for a Certificate of Appointment of Estate Trustee. Applications can take several months or longer to process depending on the court office.
Filing probate applications
Probate applications are filed with the Estate Registrar at the Superior Court of Justice in the area where the person lived or owned real property.
Paying the estate administration tax
Applying for probate also involves paying an estate administration tax, often called probate fees.
Probate fees are $15 for every $1,000 of assets over $50,000. Use the government's estate administration tax calculator to get an idea of the amount.