Uncle Jack Has Died and There Was No Will
This week a client wrote us that a family member has passed, and we have learned that there was no Will. Now they need to understand the process and costs. Here was Peter’s note to Stan outlining the process of handling an Estate without a Will…
As I understand, Uncle Jack, 86, died May 9, 2022, intestate (meaning no Will), leaving no spouse, siblings, or children and only 1 nephew (you) and 2 Nieces (your sister and a cousin).
Accordingly, the law applicable is the Succession Law Reform Act and the provision is below:
Succession Law Reform Act
R.S.O. 1990, CHAPTER S.26
Nephews and nieces
(5) Where a person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother or sister, the property shall be distributed among the nephews and nieces of the intestate equally without representation. R.S.O. 1990, c. S.26, s. 47 (5);
That said, I understand that Uncle Jack had recently sold his house (about $400K) and paid off taxes (about $130K) leaving potential resources of about $270K, and maybe a RRIF or a TFSA…and possibly other investments, and a pension. We don’t know, but we know he had a car.
Accessing these funds generally requires someone to seek an Appointment as Estate Trustee. That’s an Application to Court for a Certificate of Appointment of Estate Trustee without a Will, (which used to be called: “Probate”) without which virtually no Bank (and you can take out: “virtually”) will release any funds to anyone. The link below provides details on how you can seek this position to manage the Estate.
The next step once you have secured the position of Estate Trustee, Probate will be required. If the funds in an Estate are less than $50,000, “Probate” would not be required, and neither would “Probate Fees” be required to be paid. In Uncle Jack’s case, we know the Estate has a value of at minimum of $270.0K. So, Probate will be needed.
Now the problems begin…costs!
First, the Probate fees payable to the Court at 1.5% of the value of the Estate with a deduction of the first $50K…..you can look up the actual estimated Probate Fees on a Government website in the Ministry of Attorney General…look for Estate Administration tax calculator (or check out our Smartwills link below on Probate). Plug in various alternative estimates and it pops up the Probate fees you will need to pay before you can access the necessary paperwork to begin to unravel the Estate and have access to bank accounts and other funds.
If there is a car in the Estate as there was with Uncle John, but it was to go to someone in the “Family.” Then probably it could be transferred without HST…but it’ll depend on how the person across the counter at Service Ontario feels that day!! For sure an inspection of the car is required. And insurance on the car will be important and should be maintained in order to move the vehicle to its new owner.
The Probate Application process, depending on the jurisdiction of the place of death, can take 3 to 6 months, usually. Some jurisdictions much faster, but still weeks…and because Uncle John died without a Will, the Application will automatically take longer and will be scrutinized carefully given the “distances” between the Applicant and the Deceased (i.e., the beneficiary is not a child, not spouse, not a sibling of the deceased).
The Application process, incidentally, and the Court required Forms were totally revamped effective January 1, 2022, and the new forms are required for deaths after Jan 1, 2022 (see Smartwills link below). From my view they have not been made easier, just more complicated, and rigorous… (naturally…when the Government can…and with the help of legions of lawyers!!).
Lawyer’s fees for the Application process and Court filing can be in the range of about $3500 plus disbursements and you need to add HST. You would be responsible to get all the information required to generate all the Application documents (there are about 7 or 8 documents…..the lawyer does the work when he gets the information to do the work, this can include information on names of beneficiaries, addresses, death certificate and the valuation of the Estate..(valuation, by the way, is determined at the date of death).
To learn more about managing an estate for a family member without a Will check out our article on what to do If There Is No Will but we really do recommend a Will even if your Estate is small. It can save time and money for those that have to pick up the pieces.
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This material is for general information and educational purposes only. Information is based on data gathered from what we believe are reliable sources. It is not guaranteed as to accuracy, does not purport to be complete and is not intended to be used as a primary basis for investment decisions.