Should you probate a will that includes real estate?

Should you probate a will that includes real estate?

These are the rules in Ontario

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Q: Our father just passed away and my sister and I are co-executors and the only beneficiaries to his will. Do we need to obtain the Certificate of Appointment of Estate Trustee with a will and do we need to go through probate? His estate is composed of a joint chequing account with me, a vehicle, RRIFs (with me and my sister as beneficiaries) and his fully paid house located in Ontario, which was jointly owned by himself and our mom who predeceased him.

—Mira

A: Mira, you ask if this will must be probated. Usually wills need to be probated to deal with real estate.

You also ask if you must apply for a Certificate of Appointment of Estate Trustee with a will. This is a specific Ontario term. Ontario uses gender-neutral terms such as ‘estate trustee’ with a will or without a will. This language replaced executor, executrix or estate administrator in intestate estates.

You should check with real estate lawyers before applying to probate the will. There is a certain exemption for real estate. This may permit you to transfer ownership of the Ontario house without probate.

Certain circumstances may exist to save you the cost of probating the will. There are only limited exceptions. But the general rule is you need probated wills to sell Ontario real estate.

Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law

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