On this page
What probate means in Ontario
When people in Ontario say probate, they usually mean applying to the court for a Certificate of Appointment of Estate Trustee. The certificate confirms the executor’s authority, so banks, land registries and others will deal with them.
Ontario’s guidance describes probate as a procedure that asks the Superior Court of Justice to do one of two things: give a person the authority to act as estate trustee, or confirm the authority of the estate trustee named in the will, while formally approving the will as the person’s last valid will. It also makes a point many families miss: an estate trustee is the only person with legal authority to manage or distribute an estate. Ontario law uses “estate trustee” for the person most people still call the executor, and this page uses both.
Not every estate needs it. Whether yours does depends on what the person owned and how it was held, for example jointly with a spouse or with a named beneficiary. Probate is one part of a wider plan, and our estate planning page explains how a will can be written with it in mind.
When an estate needs probate
Ontario’s guidance says the type of assets usually decides it. If the person owned real property, or assets held by a financial institution, the estate normally must be probated. It lists the common reasons people apply:
- The person died without a will, or the will does not name an estate trustee.
- A bank or investment firm wants proof of the estate trustee’s authority before releasing money.
- The estate includes real property that does not pass to someone else by right of survivorship.
- The real property has to be sold. The guidance says the certificate should be obtained before anyone signs an Agreement of Purchase and Sale.
- Some beneficiaries cannot give legal consent, for example because they are minors.
- There is a dispute, or a possible dispute, about who should act or about the will itself. A dispute needs separate legal advice.
Before applying, the guidance suggests asking each institution holding an asset whether it actually requires a certificate. Assets held jointly, and insurance or registered plans that name a beneficiary, usually pass outside the estate and do not need one.
What the application involves, step by step
The work behind a probate application falls into a few stages:
- Finding the original will and confirming it is the last one.
- Listing and valuing everything the person owned.
- Preparing and filing the court forms.
- Paying Estate Administration Tax, which is generally based on the value of the estate.
- Filing the Estate Information Return with the Ministry of Finance after the certificate is issued.
Smaller estates can generally apply for a simpler small estate certificate instead, which asks for less. In practice the steps run in this order:
- Find the will. Ontario’s guidance lists the usual places: the person’s home, a safety deposit box, their lawyer’s office, a private will registry or the court’s records. The court needs the original, and it checks whether a later will was deposited with it. A handwritten will is proved differently, as explained in is a handwritten will valid in Ontario.
- Check the will was properly signed. A typed will needs an affidavit of execution from a witness (Form 74D). What the witnesses had to do is set out in what makes a will valid in Ontario.
- Choose the route. An estate of $150,000 or less can use the small estate process, which comes with a 30-day notice period and a certificate that only covers the assets listed in it. We compare the two in how Ontario’s small estate certificate works.
- Value the estate and work out the tax. The application states the value of the real and personal property at the date of death, and the Estate Administration Tax deposit is paid when it is filed. The calculation is in how much is Ontario’s Estate Administration Tax.
- Prepare, swear and serve the application. The forms are sworn before a commissioner for taking affidavits and served on every beneficiary before filing, with notice to the Children’s Lawyer or the Public Guardian and Trustee where a beneficiary is a minor or incapable. The full package is in how to apply for a Certificate of Appointment of Estate Trustee.
- File with the court. The application goes to the Superior Court of Justice where the person lived at death, by mail or by email under the court’s practice direction. Ontario says applications are typically processed within 15 business days, and small estate applications usually within five.
- File the Estate Information Return. Within 180 calendar days of the certificate, the estate trustee reports the estate’s assets to the Ministry of Finance, as explained in what is the Estate Information Return.
| Certificate | When it is used | Estate Administration Tax | Estate Information Return |
|---|---|---|---|
| Certificate of Appointment of Estate Trustee with a Will | There is a will and the applicant is entitled to act under it | Yes, on the value of the estate | Yes, within 180 calendar days |
| Certificate of Appointment of Estate Trustee without a Will | There is no will | Yes | Yes |
| Certificate limited to the assets referred to in the will | The person had more than one will, for example a secondary will for company shares | Yes, on the assets in that will only | Yes |
| Small Estate Certificate | The estate is worth $150,000 or less | Yes, on value over $50,000 | Yes, even if no tax is owed |
| Confirmation by resealing, or ancillary appointment | An estate trustee appointed outside Ontario needs authority over Ontario assets | Yes, on Ontario assets only | Yes |
| Certificate of succeeding estate trustee, or estate trustee during litigation | A replacement estate trustee, or an interim one while a dispute is decided | No | No |
After the certificate
We help executors with what comes next: collecting the assets, paying the debts and final taxes, keeping proper records, and distributing what is left under the will. We also act for executors who live outside Ontario.
Ontario’s guidance sums up the job: wind up the person’s affairs, pay taxes, bills and other debts, collect the estate’s assets, and distribute the residue to the people entitled to it. A few rules shape the timing.
- Creditors. Section 53 of the Trustee Act protects a personal representative who gave proper notice to creditors and then distributed the estate after the time in the notice ran out, against claims they had no notice of.
- A surviving spouse. Under section 6(14) of the Family Law Act, nothing may be distributed within six months of a married spouse’s death without the surviving spouse’s written consent or a court order, because the spouse has six months to choose between the will and an equalization payment.
- Support claims. Once served with notice of a dependant’s support application under Part V of the Succession Law Reform Act, the estate trustee must not distribute until it is resolved, unless all persons entitled to apply consent or the court orders otherwise (section 67).
If you are an executor, hold off on handing out money or belongings until the debts and taxes are clear.
Start by gathering the original will, the death certificate, and a list of the person’s accounts and property.
What changes the answer
There is no will
Without a will, nobody has been named, so the court has to appoint someone. Ontario’s guidance says the spouse or common-law partner usually has the first right to apply, then a close adult relative. The applicant generally needs consents from beneficiaries holding a majority interest in the estate (Rule 74.04(1)(f)) and, unless a judge orders otherwise, a bond. Who then inherits is set by statute, as explained in who inherits if you die without a will in Ontario.
The executor lives outside Ontario
Ontario’s guidance says a bond must be filed where the applicant named in a will lives outside Ontario, another province or territory, and the Commonwealth. Section 6 of the Estates Act is the source of that rule, and a judge can dispense with or reduce the security in special circumstances. Where there is no will, section 5 says letters of administration are not granted to someone who does not live in Ontario.
More than one will
Business owners often sign a primary will for assets that need probate and a secondary will for assets that do not, such as private company shares. Ontario’s guidance says that when the court issues a certificate limited to the assets in one will, only those assets count toward the tax. Our article on a secondary will for private company shares explains how the two documents work together.
Minor or incapable beneficiaries
The Children’s Lawyer must be served where a beneficiary is under 18, and the Public Guardian and Trustee or the beneficiary’s guardian where a beneficiary is mentally incapable. A minor’s share may also have to be paid into court until the child reaches the required age, usually 18.
A dispute
If someone has filed a notice of objection, or a later will is on deposit with the court, the certificate will not issue unless the court orders otherwise (section 16 of the Estates Act). Disputes about a will or about who should act need separate legal advice.
Example
For example, imagine Nadia, named as estate trustee in her father’s will. He lived in Markham and owned a house appraised at $780,000 with no mortgage, a bank account with $64,000 and an RRSP naming Nadia’s brother as beneficiary. The bank will not release the account, and the house is to be sold, so Nadia needs a certificate.
The RRSP passes outside the estate, so the estate is $844,000. That is $794,000 over the $50,000 threshold, so the tax deposit is 794 times $15, or $11,910. Nadia gathers the original will and the witness’s affidavit of execution, serves the application on her brother and the other beneficiaries, and files with the court office for the county where her father lived, as our page on probate in York Region describes. Ontario says applications are typically processed within 15 business days. Once the certificate issues, she lists the house, gives notice to creditors, files the Estate Information Return within 180 calendar days and distributes only after the debts and taxes are clear.
Common mistakes executors make
- Distributing too early. An executor who hands out the estate before the debts and taxes are paid can be left answering for them personally.
- Signing a sale agreement before the certificate. Ontario’s guidance says the certificate should be obtained first.
- Counting assets that pass outside the estate. Jointly held property and designated plans do not go in the estate value, and including them overpays the tax.
- Missing a beneficiary. Charities, contingent beneficiaries and minors must all be served.
- Forgetting the return. The Estate Information Return is due within 180 calendar days of the certificate, even when no tax is owed.
- Applying when no certificate is needed. Ask each institution first. No certificate means no Estate Administration Tax.
What to do this week
- Find the original will and any codicils, and order proof of death.
- List every asset, who holds it, and whether it names a beneficiary or a joint owner.
- Ask each bank, investment firm and the real estate lawyer whether they will need a certificate.
- Get date of death values for each asset, including an appraisal for any real estate.
- Make a list of every beneficiary, with email and mailing addresses, and note any minors.
- Hold off on any distribution, and keep a record of every payment you make from the estate.
- If you would like help with the application, a first consultation takes 30 minutes, by video or in person, and you can request one here.
Frequently asked questions
How long does probate take in Ontario?
It varies by court and by how complete the application is. Preparing the application usually takes a few weeks once the information is gathered; the court’s processing time comes after that. Ontario says applications are typically processed within 15 business days, longer if documents are missing or a judge has to decide an issue.
Do I have to be in Ontario to act as executor?
No. An executor named in a will who lives elsewhere can act, and we regularly work with them by video. Some extra requirements can apply to executors outside Ontario: Ontario’s guidance says a bond is required if the applicant lives outside Ontario, another province or territory, and the Commonwealth, unless a judge orders otherwise.
Is the executor personally responsible for anything?
An executor who distributes the estate before debts and taxes are paid can be personally responsible for them. That is one reason to get advice early. Section 53 of the Trustee Act protects an executor who gave proper notice to creditors before distributing, and section 6(19) of the Family Law Act can make an executor personally liable for a distribution made within six months of a spouse’s death without consent or a court order, if the court later makes an order against the estate that the undistributed portion cannot satisfy.
Does every estate need probate?
No. Ontario’s guidance says probate is not always required, and the type of assets usually decides it. An estate made up only of joint assets and designated plans may need none.
Who pays the Estate Administration Tax?
The estate does, not the executor personally. It is paid as a deposit when the application is filed and becomes the tax when the certificate is issued.
What if the named executor does not want to act?
A person named in a will does not have to act. They can sign a renunciation (Form 74G), and an alternate named in the will can apply. If there is none, Ontario’s guidance says the beneficiaries may nominate another person.
Sources
- Ontario.ca: Apply for probate of an estate (when probate is needed, forms, filing, bond, processing time)
- Ontario.ca: Administering estates (finding a will, role of an estate trustee, renouncing)
- Ontario.ca: Apply for probate of a small estate
- Ontario.ca: Estate Administration Tax (certificates with no tax, limited and resealed certificates, Estate Information Return)
- Estates Act, R.S.O. 1990, c. E.21, ss. 5, 6, 7 and 16
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 74.04 and 74.1 (Forms 74D and 74G)
- Trustee Act, R.S.O. 1990, c. T.23, s. 53 (notice to creditors)
- Family Law Act, R.S.O. 1990, c. F.3, s. 6(14) and (19)
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 67 (distribution after notice of a support application)
- Ontario.ca: Guardianship of a child’s money and property
Questions clients ask about probate
Each of these answers one question in more depth, with the Ontario law behind it.
Probate and estate trustees
- What does an estate trustee have to do in Ontario? The job from the first week to the final distribution, with the tax and court deadlines.
- How do you apply for a Certificate of Appointment of Estate Trustee in Ontario? The Rule 74.04 forms, who must be served, filing, bonds and what happens after.
- How does Ontario’s small estate certificate work? The $150,000 limit, the forms, the 30-day notice and what happens if more assets turn up.
- How does an estate trustee sell or transfer a house in Ontario? Selling or transferring a house: the certificate, beneficiaries’ approval, the three-year rule and title.
- When can an estate trustee pay out the beneficiaries in Ontario? The waits that decide when beneficiaries can be paid, and how interim payments and holdbacks work.
Estate Administration Tax
- How much is Ontario’s Estate Administration Tax? The $15 per $1,000 rule, what counts in the value, and a table by estate size.
- What is the Estate Information Return, and when is it due? The 180-day deadline, how to file, when to amend, and what happens if you do not.
York Region and Toronto
- Probate in York Region: what to expect at the Newmarket courthouse Where to file, the estates email address, counter hours and how filing works at Newmarket.
- Probate in Toronto: how the Toronto Estates Office works Where the Toronto Estates Office is, how to file, its contacts and counter hours.
This page is general information about Ontario law, not legal advice for your situation.