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When is Probate Not Needed

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 ways to prevent the transfer depending of 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 at http://www.thestar.com/article/248950 and the Memo to Land Registrars from Kate Muray dated October 30, 2000 at Registrar’s Memo where land registars 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, 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 I refer you to the Granovsky Estate case.

For those who wish to stop the distribution of non probatable  assets it is important to know that more might be required then 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.

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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