An application for a certificate of appointment of estate trustee with a will is an application made to the court to confirm the estate trustee's authority to administer an estate and the validity of the Will. This application was formerly referred to as a probate application. The term "estate trustee" includes an executor.
An estate trustee's authority comes from the Will so the application for a certificate of appointment of estate trustee with a will is not always required. Practically, the application will be made when it is required by a third party in order to transfer assets. The most common examples are where real estate needs to be sold or transferred or where a financial institution, such as a bank or investment brokerage, requires the certificate in order to pay the funds to the estate trustee.
Estate Administration Tax
An important reason not to make the application except where necessary, is that estate administration tax of 1.5% of the value of the estate in excess of $50,000 is payable when the application is made. If the application is not made, the tax is not payable.
The process to make the application for a certificate of appointment of estate trustee with a will varies depending on the circumstances. In general terms, the following are the main steps:
- A notice that the application will be made is served on the beneficiaries, including contingent beneficiaries, with a copy of the Will or, in certain cases, an excerpt of the Will. Additional rules apply where the beneficiary is a minor, unborn person or in mentally incapable within the meaning of s. 6 of the Substitute Decisions Act, 1992 (Ontario).
- The value of the estate is determined so the amount of estate administration tax which is payable can be calculated. If necessary, funds can typically be obtained from the deceased's bank in order to make this payment.
- The application for the certificate of appointment of estate trustee with a will is prepared and sworn. Additional application documentation is prepared as well, including an affidavit of service of the notice, a renunciation by anyone who does not want to act as estate trustee and a draft certificate.
- The application is filed with the court, along with the affidavit of execution and original will, death certificate and payment of estate administration tax.