Is probate always necessary to deal with estate properties?
The court has addressed this question in the case of Kulyk v. Kulyk, 2024 ONSC 4213, involving the estate of Nicholas Kulyk, who passed away in 2013. The case revolved around the management and sale of two properties—17 High Park Crescent and 53 Florence Avenue—both in Toronto.
Facts
Nicholas Kulyk's 2011 will appointed his son, Roman Kulyk, as the Executor and Trustee of his estate (the Applicant). The will specified that the estate's residue should be divided equally, with one share going to Roman and the other held in trust for Nicholas's other son, Andrew Kulyk, and his grandchildren, Jonathan and Elyse Kulyk (the Respondents). Roman allowed the Respondents to reside in the High Park Crescent property until Jonathan and Elyse reached adulthood and permitted Andrew to use the garage at the Florence Avenue property.
As both Jonathan and Elyse reached the age of majority, Roman sought to sell the properties to finalize the estate.
Legal proceedings
Roman Kulyk applied to the court for several remedies, including:
1. A vesting order to affirm his authority over the properties.
2. Orders for possession and authority to sell the properties without needing additional consents from beneficiaries.
3. Orders for the respondents to vacate the properties and provide accounts of rents collected.
4. Authorization to issue writs of possession.
The respondents, however, did not engage with the legal proceedings despite being served and failed to respond to any of the proceedings.
The Court's ruling and reasons
The court reviewed the case considering that Roman had not applied for a Certificate of Appointment of Estate Trustee with a Will. It stated that probate (the certificate) is not always required and that
"Executors derive their authority from the will itself rather than from the probate process"
The court further went on to state that the main purpose of probate (the certificate of appointment of estate trustee) is not to grant executors the authority to manage estate property, but to verify to third parties that those presenting themselves as executors are indeed the authorized individuals with such authority.
The court confirmed that since Roman held legal title to the properties, no vesting order was necessary. The will already granted him the authority to manage and sell the estate's properties, making additional orders for sale unnecessary. However, due to the Respondents' disregard for the proceedings, the court ordered them to vacate both properties by September 30, 2024. It also granted Roman the authority to issue writs of possession and ordered the respondents to account for any rents collected and provide lease details.
Further, the Respondents were ordered to pay $20,000.00 in legal costs!
Takeaways
The court's decision therefore confirmed that a Trustee derives his or her authority to deal with estate properties from the Will, and that probate may not always be necessary. While probate can be important for validating an executor's authority to third parties, it is not essential for all estate management tasks. As always, it is important to consult with a lawyer to determine whether probate is required for your specific situation.
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