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Legal Ease
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In Ontario how do you qualify to waive probate on a will which

Customer Question

In Ontario how do you qualify to waive probate on a will which involves family property?
Submitted: 5 years ago.
Category: Canada Law
Expert:  Legal Ease replied 5 years ago.

Debra Thal (username) :

What do you mean when you say waive probate?

Debra Thal (username) :

Are there assets in the testator's name alone?

Customer:

Here is the scenario:

Customer:

My mother, father and sister (MARY) were listed as (1/3 each)Joint Tenants on the title of the family home (since 1983). Mary has always lived at home. My brother and I moved out in 1982 and 1980 respectively. In 1999, Mother was diagnosed with terminal cancer and made a will giving her 1/3 share of the house my brother and I. Dad also made his will at that time, leaving his 1/3 share of the house to Mary. Mary was named executor of both wills and power of attourney for Father. My brother Alex and I knew that wills were drawn up but were unaware of the contents. Mother passed away 3 months later. Mary became a very active hoarder of both animals (16 cats) and everything relating to Mother. \over the next 12 years \mary was "unable' to deal with disclosing Mother's will; she simply couldn't deal with it. Dad passed away in August 2010. My brother and I insisted on seeing both wills. Mary finally relented and provided copies of the wills on December 24/10. Mary has lived in the family home for the past 40 years and continues to do so; her cat collection has been reduced to 8 (death by natural causes). The house has now been reduced to the equivalent of a large litter box. My brother and I both have families and homes. We are in agreement that Mary should hav

Customer:

retain possesion of the family home. We are willing to sign over our combined 1/3 share to \mary. I was shocked to find out that it is customary to have the wills probated (this will cost approx $4000 in probate costs - based on the modest value of the house $300,000. The house is a semi. The other half sold for $319,000 last year. It was in much bettter condition than ours. I understand that there are instances where probat may be waived. Does this situation qualify? I should also mention that when the wills were made, the title of the house was changed to Tenants-in-Common.

Customer:

I am going to sign off shortly and will be logging in tomorrow after 10 am. Thank you for your assistance.

Debra Thal (username) :

If title was held as tenants in common then when the title holder dies that part of the property vests in the estate and title does not vest in the other title holders.

Debra Thal (username) :

So in that case probate is required because there is no legal way to transfer title.

Debra Thal (username) :

If title was held as joint tenants then the title vests in the other owners at death and probate is not needed.

Debra Thal (username) :

Let me know if you need further clarification.

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