When someone dies in Ontario, their investments, real estate, personal belongings, other assets, and debts make up their estate. Assets that are not held jointly with right of survivorship or that do not pass directly to named beneficiaries may require an estate trustee to obtain probate in order to distribute them.
An estate trustee must apply to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee. If an estate value is under $150,000, the estate trustee can apply for a Small Estate Certificate. Since April 2021, the simplified process for probate has been available for small estates. The Ontario Ministry of the Attorney General provides detailed steps here.
Estates valued at more than $150,000 in Ontario generally require a Certificate of Appointment of Estate Trustee, particularly estates that include cash or investments at a financial institution or real estate.
The first step in the probate process is to obtain a copy of the will. It may be located in the home of the deceased, in a safety deposit box they owned, or at their lawyer’s office. It may also be registered through a private online will registry.
If there is no valid will but the deceased had a spouse or common-law partner, they typically have the first right to apply for probate. If there was no spouse or common-law partner, an adult child or other relative can apply for probate.
If there is a valid will, the estate trustee named can apply. An estate trustee is often aware that they were appointed by the deceased, but there is no requirement to notify an estate trustee when they are listed in a will.
Want to know if your asset requires probate?
Our team member Maria Tanel is a P1 paralegal licensed by the Law Society of Ontario, notary public, and commissioner of oaths. She has over 25 years of experience working with executors to manage their estate, wills and deal with probates.
In order to apply for probate in Ontario, typical court forms include:
- Form 74A Application for a Certificate of Appointment of Estate Trustee
- Form 74B Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee
- Form 74C Draft Certificate of Appointment of Estate Trustee
- Affidavits, including Form 74D, 74E or 74F
- Other forms as necessary and applicable
Different situations will require different forms to be completed and submitted. Rule 74.04 of the R.R.O. 1990, Regulation 194: Rules of Civil Procedure under the Courts of Justice Act may help a probate applicant determine which forms and supporting documents may be required.
An estate trustee or family member can also seek out professional advice to ensure the correct forms are submitted, that the information on the forms is accurate, determine if a bond is required, and understand the responsibilities and risks of acting as an estate trustee. Unfortunately, Ontario court staff is not permitted to provide advice to applicants.
Other steps involved to obtain a grant of probate include:
- Calculating and paying the Ontario Estate Administration Tax (EAT)
- Providing a copy of the Application to any beneficiaries of the estate
- Posting an estate administration bond if there is no valid will, the applicant is not the estate trustee named in the will, or in some cases, if the applicant is a non-resident of Canada
- Filing the Application and providing all supporting documents to the applicable Ontario court
A probate application can take 3 months or longer to be approved, but may be delayed if forms are not completed correctly, if documentation is missing, or if there is an issue that requires a judge to make a decision.
Once a Certificate of Appointment of Estate Trustee is successfully obtained by the estate trustee, they can begin to carry out their duties, which may include:
- Notifying or cancelling applicable government services (pension or survivor benefits, driver’s license, health card, etc.)
- Advertising for creditors
- Notifying financial institutions
- Completing insurance claims
- Filing the Estate Information Return with the Ministry of Finance within 180 days of receiving the Certificate of Appointment of Estate Trustee
- Transferring assets into the name of the estate
- Arranging for the sale of assets
- Closing accounts
- Paying debts, taxes, and other expenses
- Filing required and optional income tax returns and forms
- Applying for income tax clearance certificates
- Distributing assets to the beneficiaries
- Preparing a statement of estate account
- Obtaining releases
The probate and estate administration process can be complex and time-consuming. Although an executor can perform all of the duties on their own, their primary responsibility is to ensure the settlement of the estate of the deceased. They can obtain professional assistance with some or all related requirements from a trust company, a lawyer, or another estate professional.
Want to know if your asset requires probate?
Our team member Maria Tanel is a P1 paralegal licensed by the Law Society of Ontario, notary public, and commissioner of oaths. She has over 25 years of experience working with executors to manage their estate, wills and deal with probates.
