When is Probate Not Needed in Ontario

It is important for people who wish to stop estate assets from being distributed to know that a certificate of appointment (“Probate") is not always necessary to effect the transfer of assets. For example:

1. When there is jointly-owned real property or bank accounts, those assets pass to the surviving joint tenant by right of survivorship. In this instance the only thing needed by the surviving joint tenant is to have a death certificate. There may still be ways to prevent the transfer depending on the facts specific to the situation.


2. Real Estate, under certain circumstances, may be transferred under a will without probate. See Bob Aaron’s article and the Memo to Land Registrars from Kate Muray dated October 30, 2000, where land registrars are provided guidelines under what circumstances they are authorized to waive the requirement of a certificate of appointment of estate trustee when approving the transfer of property.


3. Insurance Policies and RRSPs may designate a beneficiary and probate may not be necessary to access those funds.


4. Shares in a private corporation - In order to avoid probate fees sophisticated investors use multiple wills. Since a great deal of wealth may be concentrated in the shares of these private corporations, the testator may have made a separate will to deal with these shares and probate would not be necessary. For those interested in this topic, the Granovsky Estate case can be used as a referral.

For those who wish to stop the distribution of non-probatable assets it is important to know that more might be required than simply blocking probate by filing a notice of objection.

If the asset in question is real property then one should contact a lawyer and investigate the possibility of obtaining a certificate of pending litigation or caution against title. If one seeks to stop the transfer of shares then one must go to court and seek judicial intervention. Those who ignore these possibilities do so at their peril.

ABOUT THE AUTHOR: Charles B. Wagner
The author is a Toronto lawyer at Charles B. Wagner & Associates, which is a boutique litigation law firm that has American and other international clients with commercial and estate litigation cases involving Ontario residents.

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