Does anyone know the current processing time for probate applications in ? Fill in the blank with the Ontario court location of your choice – it is a question that comes up frequently in our network of estates law clerks. So I was interested when I saw two recent articles in The Globe and Mail: “Even with a will, probate wait times can be all over the map” and “A month? A year? Probate wait times can vary widely depending on where you live”.
Depending on the court location and the nature of the application, executors may wait considerably longer than expected to receive a Certificate of Appointment.
Those of us who work in estates know that conversations about probate delays usually focus on what happens after the application has been filed. However, an equally important part of the story is what happens before it reaches the court.
Many executors are surprised by how much work is required before an application can even be prepared. By the time it is ready for filing, weeks or sometimes months may have been spent locating documents, gathering beneficiary and asset information, and obtaining the values needed for the application.
I recently saw two examples of this play out in our network of estates law clerks. One question asked was how to value royalties the deceased had been receiving from book sales at home and abroad as at the date of death, including how to account for royalties that might still be paid in the future. Another question was dealing with a mixed will, partly in the deceased’s handwriting and partly not, where the witnesses could no longer be found to swear an Affidavit of Execution. Neither situation is particularly unusual, but each shows how much can need to be sorted out before an application is ready to go to the court.
It Often Begins With a Search for the Original Will
One of the first questions an executor may face is: where is the original Will?
The deceased may have changed lawyers over the years, and family members may have different recollections about where the original was kept. Important estate planning documents may be stored in a safety deposit box, at a lawyer’s office, or among papers found in the deceased’s home.
Before an application can be prepared, the executor and their advisors need to confirm that they have the original Will.
Identifying and Valuing the Assets Can Take More Time Than Expected
Another common surprise is the work involved in identifying estate assets and obtaining the necessary values.
Many executors believe they have a reasonably complete understanding of the deceased’s finances. But once they begin the review, additional bank or investment accounts may be identified, and statements, tax returns and personal records may need to be located. Executors may also need to contact financial institutions and accountants, sift through mountains of paperwork and follow up with family members. Responses do not always arrive immediately, and executors have limited control over how quickly third parties provide the information needed. Each step may seem relatively small, but together they can add considerable time to the process.
Before a probate application can be filed, executors generally need to determine the assets to be included in the application and their fair market value at the date of death. This may require input from accountants, valuators, real estate professionals or other advisors. In larger or more complex estates, this process can take considerably longer than expected.
Identifying the beneficiaries can involve its own work. Executors may need to confirm current addresses, locate missing beneficiaries, or determine who is entitled to a share of the estate if someone named in the Will has since died or if the deceased died without a Will.
Closing Thoughts
The Globe and Mail articles are a useful reminder that court processing times remain an important issue for executors and beneficiaries. However, focusing only on the time it takes for the court to issue a Certificate of Appointment can overlook the considerable work that often takes place beforehand.
By the time an executor signs a probate application, the original Will has been located, the assets and beneficiaries have been identified, and there has often already been extensive communication with financial institutions, advisors and family members.
That groundwork not only gets the application ready for filing, it also lays the foundation for administering the estate once the Certificate of Appointment is issued. For executors, understanding that reality can help with planning, prioritizing tasks and setting expectations with beneficiaries from the outset.
Thanks for reading.
