What happens if I don't get probate when it is required in Ontario?
If probate is required and you skip it, assets can stay stuck and you may face personal risk. An estate normally must be probated if the deceased owned real property, or assets held by a financial institution, in their own name. Land registry staff accept a certificate of appointment of estate trustee as proof of an estate trustee's authority to deal with a deceased owner's land.
Narrow exceptions exist, such as a surviving joint tenant taking land by survivorship without an estate certificate. Whether one applies to you is worth confirming with a lawyer.
Other risks follow the money. A representative who distributes before getting a CRA clearance certificate is personally liable for any tax debt, up to the value of the assets distributed. If probate is completed and a certificate is issued, further duties apply. The Estate Information Return is due within 180 calendar days after the certificate is issued, and must be filed even if the estate value is $0. An estate representative who fails to file it, or who makes false or misleading statements, may be fined at least $1,000 and up to twice the tax payable, or face up to two years' imprisonment, or both.
Key takeaways
- An estate normally must be probated if the deceased owned real property or financial institution assets in their own name.
- Land registry staff accept a certificate of appointment of estate trustee as proof of authority over a deceased owner's land.
- Distributing before getting a CRA clearance certificate makes the representative personally liable for tax debt up to the value distributed.
- If probate is completed and a certificate is issued, the Estate Information Return is due within 180 calendar days, and failing to file it can bring a fine or imprisonment.