Common Probate Mistakes That Cost Ontario Families Thousands
TL;DR: Most probate mistakes happen because a first-time executor is managing deadlines and legal duties nobody explained to them. The costliest ones are distributing money before the six-month dependant support window closes (SLRA s. 61), missing the 180-day Estate Information Return deadline (Estate Administration Tax Act, 1998), skipping a required court bond (Estates Act s. 35), and paying yourself before compensation is approved (Trustee Act s. 61(1)). Each mistake can force an executor to repay money personally. A short consultation with a probate lawyer up front is almost always cheaper than fixing one of these after the fact.
When someone names you executor, known formally in Ontario as an "estate trustee," they are trusting you to carry out their wishes and manage their money after they are gone. Most people take on this role once in their lives, with no training and no one reviewing their decisions along the way.
Even executors working from a clear, valid will report running into real problems during administration. A survey cited by the Canadian Institute of Certified Executor Advisors found that executors reported administrative issues 47% of the time, emotional strain 31% of the time, and legal issues 26% of the time. Separately, one insurer that covers executor liability has identified 18 recognized areas, backed by case law, where an executor's mistake can create personal liability to creditors or beneficiaries.
This article covers the mistakes that show up most often in Ontario probate files, why each one is costly, and what a lawyer does differently.
Why Probate Mistakes Happen So Often
Executors are almost always family members or close friends, not legal professionals. Half of Canadian adults do not even have their own will in place, according to the Angus Reid Institute, which means most people have never seen how estate administration works before they are suddenly responsible for it.
Being an estate trustee also means acting as a fiduciary, meaning you are legally required to put the estate's and beneficiaries' interests ahead of your own. The role requires you to follow strict statutory deadlines and personally answer for mistakes. Grief, family pressure, and unfamiliar legal deadlines combine to create exactly the conditions where costly errors happen.
The Most Costly Probate Mistakes in Ontario
Distributing the Estate Before the Dependant Support Window Closes
Paying beneficiaries out too early is one of the most expensive mistakes an executor can make. Under Part V of the Succession Law Reform Act (SLRA), a spouse, parent, child, or sibling the deceased was financially supporting can apply for dependant support within six months of the Certificate of Appointment of Estate Trustee being issued. If a dependant support application is filed and the estate trustee is served with notice, section 67 of the SLRA stays further distribution, and the trustee can become personally liable for any shortfall if they distribute after that point.
Waiting out the six-month window is good practice, but it is not an absolute shield on its own. In Dentinger (Re), [1981] O.J. No. 303, the executors were told a dependant intended to make a claim, then distributed nearly all the estate's real property to themselves and other beneficiaries before a formal application was filed. The court held them personally liable anyway, because they had knowledge a claim was coming, even though no application had been served yet.
Before making a final distribution, an estate trustee should:
Confirm the six-month window since the Certificate of Appointment has closed
Check whether any spouse, parent, child, or sibling was financially dependent on the deceased
Get legal advice if a dependant support claim seems possible, even if nothing has been formally filed yet
For more on how the SLRA shapes estate succession in Ontario, see our guide to the Succession Law Reform Act.
Missing the 180-Day Estate Information Return Deadline
Every estate trustee who receives a Certificate of Appointment must file an Estate Information Return with the Ontario Ministry of Finance under the Estate Administration Tax Act, 1998. This return is due within 180 calendar days after the certificate is issued, even if the estate owes no tax because its value is $50,000 or less. Miss the deadline, and the Ministry can audit the estate and assess additional tax at any time, with no fixed limit on when that review can start. Filing a false or misleading return is also a provincial offence, carrying fines starting at $1,000 and up to two years' imprisonment.
Walking through the full filing process? See our Estate Information Return guide.
Applying for Probate Without a Required Bond
If you are a will-named executor living in Ontario, you almost certainly do not need a bond. Most first-time executors fall into this category, and no bond is required for them. The requirement kicks in only in specific situations, and it is worth checking which one, if any, applies to you.
Under section 35 of the Estates Act, a bond is generally required whenever an estate is administered without a valid will naming the applicant, which covers intestacies (dying without a will) and cases where the will does not name the person seeking appointment. When a bond is required under section 35, it defaults to double the sworn value of the estate, which can be a significant upfront cost, so it is worth knowing in advance rather than being surprised by the bonding company's quote.
Separately, under section 6, an executor who resides outside Ontario and outside the rest of the Commonwealth must post a bond even when a valid will names them, unless the court waives or reduces the requirement. Small estates valued under $150,000 with no minor or incapable beneficiaries can qualify for an automatic exemption under section 36(3), though that exemption is itself subject to section 6, so it does not necessarily protect a non-Commonwealth resident. A well-drafted will can also include a clause waiving the bond requirement for the named executor. Families who do not check this in advance find out the hard way, when the court rejects the application and adds months of delay.
Recent amendments under O. Reg. 72/25, effective August 13, 2025, updated the bond language in the probate application forms to align directly with Rule 74.11(5) of the Rules of Civil Procedure and revoked the older Form 75.2. Executors and their counsel should confirm they are using the current form versions before filing.
Taking Executor Compensation Before It Is Approved
An estate trustee is entitled to compensation under section 61(1) of the Trustee Act for the care, pains, trouble, and time spent administering the estate. Ontario courts commonly use a benchmark of roughly 5% of the estate's value, typically split evenly as 2.5% on amounts received into the estate and 2.5% on amounts paid out, but this figure is a court-developed guideline, not a fixed entitlement an executor can take unilaterally. Paying yourself before beneficiaries consent, or before a court approves the amount on a "passing of accounts" (a formal court process where a judge reviews and approves the executor's accounting of the estate), can force repayment with interest.
Skipping Notice to the Office of the Children's Lawyer
An estate trustee must notify the Office of the Children's Lawyer whenever a beneficiary under 18 has an interest in the estate, whether through a will or through Ontario's intestacy rules. In practice, this notice is usually satisfied by serving the Office of the Children's Lawyer with the probate application materials, not a separate filing, so it adds a step rather than a second process. Skipping it can delay or complicate probate approval.
Under section 51(1) of the Children's Law Reform Act, a minor's inheritance of $35,000 or less can be paid directly to a parent with lawful custody; above that threshold, it generally must be held by the court or structured through a formal trust. (See our companion article on handling a minor beneficiary's inheritance for a full breakdown of the options.)
Confusing Which Assets Actually Belong to the Estate
Not every asset the deceased owned passes through probate. Assets held in true joint tenancy with right of survivorship, and registered accounts or insurance policies with a named beneficiary, generally pass directly to the survivor or beneficiary, outside the estate. Executors who misunderstand this often overreport or underreport the estate's value on the Estate Information Return, or assume funds are available for distribution when they are not. These outside-the-estate assets are not automatically off-limits to every claim, either: under section 72 of the SLRA, a jointly-held bank account, for example, could still be pulled back in and treated as part of the estate if a dependant applies for support.
Underestimating How Long Full Administration Actually Takes
Court review of a straightforward probate application commonly takes six to eight weeks, though this varies by courthouse and can extend to several months in busier regions such as Toronto. Finishing the estate, meaning paying debts, filing tax returns, and distributing what remains, is commonly reported by Ontario estate lawyers to take eight to twelve months in total, sometimes longer for estates involving real estate or investment accounts. Executors who treat court approval as the finish line often mislead beneficiaries about timing and create unnecessary family conflict.
For a fuller breakdown of what each stage takes, see How Long Does Probate Take in Ontario?
Common Mistakes at a Glance
| Mistake | Governing Deadline / Threshold | Consequence of Missing It | Fix |
|---|---|---|---|
| Distributing before dependant support window closes | 6 months from Certificate of Appointment (SLRA s. 61) | Personal liability for shortfall, possibly even before formal notice (Dentinger (Re)) | Wait out the window; get legal advice on any potential dependant, even informally raised |
| Missing the Estate Information Return | 180 calendar days from certificate issuance | Unlimited-time audit exposure; fines and possible imprisonment for false/misleading returns | Calendar the deadline the day the certificate arrives |
| Applying without a required bond | Estates Act ss. 6, 35, 36(3) | Application rejected; months of delay; bond costs double the estate's value | Confirm bond status (residency, will terms, estate value) before filing |
| Taking compensation early | Trustee Act s. 61(1); ~5% guideline (2.5%/2.5% split) | Forced repayment with interest | Get written beneficiary consent or court approval first |
| Skipping notice to the Children's Lawyer | CLRA s. 51(1); $35,000 threshold | Delayed or complicated probate approval | Confirm minor beneficiaries early; notify OCL if required |
| Misclassifying estate vs. non-estate assets | SLRA s. 72 clawback | Wrong EIR values; premature distribution of funds not actually available | Sort every asset before filing |
| Underestimating administration timelines | ~6–8 weeks probate; ~8–12 months full administration | Beneficiary conflict from mismanaged expectations | Set realistic timelines with beneficiaries up front |
Best Practices to Reduce Executor Liability
Executors can significantly reduce their personal risk by following a few consistent practices:
Wait the full six-month dependant support window before making final distributions
Calendar the 180-day Estate Information Return deadline the day the certificate arrives
Confirm whether a bond applies before filing the probate application
Get written consent or court approval before taking any compensation
Confirm early whether any beneficiary is a minor and notify the Office of the Children's Lawyer if so
Sort every asset into "passes through the estate" or "passes outside the estate" before filing
Set realistic timeline expectations with beneficiaries from the outset
Executors who follow this checklist on their own still face a steep learning curve under time pressure. A short consultation with a probate lawyer at the outset is often far less expensive than correcting one of these mistakes after the fact.
Conclusion
An estate trustee is not automatically protected just because they mean well. Ontario law imposes specific deadlines and procedural requirements, and missing any one of them can create personal liability, regardless of intent. Waiting out the dependant support window, filing the Estate Information Return on time, confirming bond requirements, and getting proper approval before taking compensation are not optional best practices; they are the difference between a smooth estate administration and a costly, personal financial exposure.
B.I.G. Probate Law Ontario helps executors navigate these requirements and avoid personal liability. The firm provides clear guidance on distribution timing, tax filings, bonds, and compensation throughout the probate process.
For questions about executor duties or estate administration, contact B.I.G. Probate Law Ontario at 437-525-1888 or welcome@probatelawgroup.ca. Visit probatelawgroup.ca or book a free call to discuss your specific situation.
Frequently Asked Questions
What happens if an executor distributes an estate too early in Ontario?
An executor who distributes assets before the six-month dependant support window closes can become personally liable to repay funds if a dependant later files a valid claim under Part V of the SLRA. Courts expect estate trustees to confirm no outstanding claims exist before releasing final funds, and case law shows an executor can be held liable even before a formal application is served, if they had reason to believe a claim was coming. Waiting the full six months after the Certificate of Appointment is issued substantially reduces, though does not entirely eliminate, this risk.
How long does an executor have to file the Estate Information Return in Ontario?
An executor must file the Estate Information Return with the Ontario Ministry of Finance within 180 calendar days after the court issues the Certificate of Appointment of Estate Trustee. This applies even if the estate owes no Estate Administration Tax because its value is $50,000 or less. Missing the deadline exposes the estate to an audit with no fixed limit on when the Ministry can review the file.
Do all estates in Ontario need a bond to obtain probate?
If you are a will-named executor living in Ontario, you almost certainly do not need one. A bond is generally required only when an estate is administered without a valid will naming the applicant, or when an executor resides outside Ontario and outside the rest of the Commonwealth, even with a valid will. When required, the bond amount defaults to double the estate's sworn value. Small estates under $150,000 with no minor or incapable beneficiaries can qualify for an automatic exemption, and a well-drafted will can waive the bond requirement for the named executor.
Can an executor pay themselves before the estate administration is finished?
An executor should not take compensation before beneficiaries consent or a court approves the amount. Section 61(1) of the Trustee Act entitles an estate trustee to fair and reasonable compensation, generally benchmarked around 5% of the estate's value (typically split 2.5% on amounts received and 2.5% on amounts paid out), but this is a guideline applied by courts, not a fee an executor can withdraw unilaterally. Taking payment without approval can require repayment with interest.
What is the difference between probate approval and finishing estate administration?
Probate approval, formally the Certificate of Appointment of Estate Trustee, confirms the executor's legal authority to act and typically takes a few weeks to a few months. Full administration, including collecting assets, paying debts and taxes, filing the Estate Information Return, and distributing what remains, commonly takes eight to twelve months and can take longer for estates with real estate, investments, or disputes.
Is it worth hiring a lawyer for a probate matter that looks straightforward?
Even estates that appear simple carry deadlines, bond requirements, and personal liability exposure that most first-time executors do not know about until a problem arises. Surveyed executors report administrative, legal, or emotional difficulties even when working from a clear, valid will. A short consultation with a probate lawyer generally costs far less than correcting one of these mistakes after the fact.