Probate Process Ontario: Guide to Estate Procedure
When someone dies in Ontario, their estate often needs to go through probate before assets can be distributed to beneficiaries. Probate is a court procedure that gives legal authority to an estate trustee to manage and distribute the deceased person's assets, and formally approves the will as valid. The process involves applying to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee, which typically takes 8-12 months to complete.
The probate process varies depending on whether the deceased left a will, the value of the estate, and the types of assets involved. Understanding these requirements can help families navigate this challenging time more effectively, whether dealing with a straightforward estate or facing complications like missing beneficiaries or disputed wills.
We'll walk you through the key steps, requirements, and your obligations once probate is granted, including simplified procedures for smaller estates and what to expect throughout the process.
Understanding the Probate Process in Ontario
Probate in Ontario is a court procedure that validates a deceased person's will and grants legal authority to the estate trustee.
The Ontario Superior Court of Justice oversees this process, which usually takes six to twelve months to complete.
What Is Probate?
Probate is the legal process where the Ontario Superior Court of Justice validates a deceased person's will.
The court confirms that the will is genuine and legally binding.
During probate, the court also grants authority to the estate trustee.
This person gets the legal power to manage and distribute the deceased's assets.
The court issues a Certificate of Appointment of Estate Trustee when probate is approved.
This document proves the estate trustee has legal authority to act on behalf of the estate.
Without probate, financial institutions and other organizations won't release the deceased's assets.
The certificate allows estate administration to proceed.
The probate process protects beneficiaries by ensuring the will is valid.
It creates a public record of the estate's value and the appointed trustee.
For a more detailed explanation of the probate process, including what it is and when it’s required, read our guide on what probate is in Ontario.
When Is Probate Required?
Probate becomes necessary in several situations.
We must obtain probate when the deceased owned real estate that doesn't pass by right of survivorship.
Financial institutions usually require probate before releasing funds.
Banks and investment companies need proof of legal authority to transfer assets to the estate trustee.
Key situations requiring probate:
Real estate must be sold or transferred
Bank accounts or investments exceed certain thresholds
No will exists (intestacy)
The will doesn't name an estate trustee
Disputes exist about the will's validity
Some beneficiaries cannot provide legal consent
Small estates valued at $150,000 or less may qualify for a Small Estate Certificate instead.
This simplified process has fewer requirements than full probate.
Estates with only jointly-owned assets or registered accounts with named beneficiaries may avoid probate entirely.
Who Acts as Estate Trustee?
The estate trustee is the person legally responsible for managing the deceased's estate.
This role was previously called an executor in Ontario.
When a will exists, the person named in the will usually becomes the estate trustee.
This person can choose to let someone else apply for the role instead.
When no will exists, priority follows a specific order:
Spouse or common-law partner has first priority
Adult children come next
Parents, then grandchildren, siblings, or other relatives follow
The court may choose the most appropriate person when multiple relatives have equal priority.
Factors include willingness to serve, location, and ability to handle the responsibilities.
Estate trustees must:
File the required court documents
Pay estate administration tax
Notify all beneficiaries
Manage estate assets responsibly
Distribute assets according to the will or intestacy laws
Eligibility and Initiation of the Probate Application
Starting a probate application requires meeting specific eligibility criteria and preparing essential documents for the Ontario Superior Court of Justice.
The executor named in the will usually initiates this process by filing the required forms and supporting documentation.
Who Can Apply for Probate?
The executor named in the deceased's will has the primary right to apply for probate in Ontario.
This person is called the estate trustee with a will.
If no executor is named or the named executor cannot serve, we follow a specific order of priority.
The spouse comes first, followed by children, then parents, and finally siblings.
Priority Order for Probate Applications:
Named executor in the will
Surviving spouse
Adult children
Parents of the deceased
Siblings
When multiple people have equal priority, they must either apply together or one person can apply with consent from the others.
The Ontario Superior Court of Justice decides who receives the certificate of appointment.
People who cannot apply include minors, those deemed mentally incapable, and anyone convicted of murdering the deceased.
Explore our step-by-step guide on how to apply for probate in Ontario and understand the legal requirements every estate trustee should know.
Gathering the Required Documents
We need several key documents to complete a probate application in Ontario.
The original will serve as the most important document for the application.
Essential Documents Include:
Original will
Proof of death (death certificate)
Estate inventory listing all assets and debts
Application for Certificate of Appointment of Estate Trustee with a Will
Affidavit of Service showing proper notice was given
We must provide accurate valuations for all estate assets as of the date of death.
This includes real estate, bank accounts, investments, and personal property.
The estate inventory helps calculate probate fees, also known as Estate Administration Tax.
We pay these fees based on the total value of the estate assets.
Role of the Ontario Superior Court of Justice
The Ontario Superior Court of Justice reviews all probate applications and issues the certificate of appointment.
We must file our application with the court registry in the jurisdiction where the deceased lived.
The court examines the will's validity and ensures we followed proper procedures.
This includes confirming we gave proper notice to all beneficiaries and potential heirs.
Once approved, the court issues a Certificate of Appointment of Estate Trustee with a Will.
We often call this document a probate certificate.
The probate certificate gives us legal authority to manage the deceased's estate.
Banks, government agencies, and other institutions require this document before releasing assets or transferring property.
Processing times usually take about six months from filing to receiving the certificate of appointment.
Probate Process When There Is a Will
When someone dies with a valid will in Ontario, the person named as estate trustee must obtain court approval to manage the deceased's assets.
This involves locating the original will, serving notice to all beneficiaries, and completing specific court forms before filing with the Superior Court of Justice.
Locating and Validating the Will
We must find the deceased's original will before starting the probate process.
The court requires the original document, not photocopies or digital versions.
Common places to search include the deceased's home, safety deposit box, or lawyer's office.
We can also check with the Office of the Public Guardian and Trustee if the will was deposited there.
The will must be in good condition for probate.
If the original will has any markings, alterations, or damage, we need to document these changes carefully.
Types of wills we may encounter:
Formal wills signed with witnesses
Holograph wills written entirely by hand
Wills with codicils (amendments or additions)
The court needs to verify that this is the deceased's most recent and valid will.
We must search estate court records to ensure no newer will exists.
Notifying Beneficiaries
We must serve a copy of the probate application to everyone entitled to receive assets from the estate.
This happens before we file documents with the court.
The application copy we serve must be signed by us in front of a Commissioner for Taking Affidavits.
We can send it by email to their last known address or by regular mail.
People who must receive notice include:
All beneficiaries named in the will
Anyone entitled to inherit if there was no will
The Office of the Children's Lawyer (for minor beneficiaries)
The Office of the Public Guardian and Trustee (for incapable adults)
We must keep proof that we properly served all required parties.
This service requirement protects everyone's legal rights in the estate.
Affidavit and Court Forms for Probate
We need to complete several court forms to apply for a Certificate of Appointment of Estate Trustee.
These forms must be signed before a Commissioner for Taking Affidavits.
Required forms include:
Application (Form 74A)
Affidavit of Service (Form 74B)
Draft Certificate (Form 74C)
We must also file one of these affidavits with the original will attached:
Form 74D: Affidavit of Execution of Will for formal wills
Form 74E: Affidavit of Condition of Will if the will has markings or damage
Form 74F: Affidavit for holograph wills
Additional forms may be needed depending on our situation.
These include renunciation forms if other estate trustees are not applying, or consent forms if we were not named in the will.
We must also calculate and pay Estate Administration Tax when filing our application with the court.
Probate Process Without a Will
When someone dies without a will in Ontario, the estate must go through probate under intestate succession laws.
The court must appoint an estate trustee, and family members may need to provide renunciations or consents during this process.
Intestate Succession Laws
The Succession Law Reform Act governs how we distribute assets when someone dies without a will in Ontario.
This law creates a specific order for who inherits the estate.
If the deceased has a spouse but no children, the spouse receives the entire estate.
When there's a spouse and children, the spouse gets the first $200,000 plus one-third of the remaining estate.
The children share the rest equally among themselves.
If there's no spouse, the children inherit everything in equal portions.
Without a spouse or children, the estate goes to parents, then siblings, then other relatives in a set order.
The Public Guardian and Trustee handles estates when no eligible family members exist.
Appointment of Estate Trustee Without a Will
We must apply to the court for a Certificate of Appointment of Estate Trustee Without a Will when no will exists.
Only Ontario residents can apply for this appointment.
The law sets a priority order for who can become an estate trustee.
Spouses come first, followed by children, then parents and other relatives.
Form 74F is the main application document we file with the court.
This form requires detailed information about the deceased's assets and family members.
The court may require an estate administration bond to protect the estate.
This bond acts as insurance if the estate trustee makes mistakes or acts improperly.
Renunciations and Consents
Renunciations happen when people with higher priority choose not to become estate trustees.
They must sign legal documents giving up their right to apply.
Family members often need to provide consent supporting the estate trustee application.
These documents show the court that relatives agree with the appointment.
When minor children are involved, we may need approval from the Children's Lawyer.
This office protects the interests of children who cannot speak for themselves in legal matters.
All renunciations and consents must be properly signed and witnessed.
Missing or incorrect documents can delay the probate process significantly.
Valuing and Managing Estate Assets
Estate trustees must identify and value all estate assets to determine probate fees and ensure proper distribution.
Understanding the differences between probate and non-probate assets helps streamline the process and avoid costly mistakes.
Inventory of Estate Assets
Creating a complete inventory means examining all financial records and personal documents.
We also need to contact relevant institutions. Missing assets can create legal problems with the court or the Canada Revenue Agency.
Common estate assets include:
Real estate properties
Bank accounts and investment portfolios
RRSPs, RRIFs, and TFSAs
Personal property (vehicles, jewellery, collectibles)
Business interests or private company shares
Digital assets like cryptocurrency
We must determine the fair market value of each asset as of the date of death.
This value affects estate administration tax calculations and distribution to beneficiaries.
For unique assets like artwork or collectibles, we often hire professional appraisers.
Qualified appraisers usually provide comparative market analysis for real estate.
Joint Ownership and Designated Beneficiaries
Assets with joint ownership or named beneficiaries bypass probate.
These non-probate assets transfer directly to surviving owners or beneficiaries without court involvement.
Non-probate assets include:
Jointly-owned property with survivorship rights
Life insurance policies with named beneficiaries
Registered accounts with designated beneficiaries
Assets held in trust
Probate assets require court validation before distribution.
Solely-owned real estate, bank accounts without beneficiaries, and personal property owned exclusively by the deceased fall into this category.
We must review ownership documents to determine which assets require probate.
This distinction significantly impacts the estate administration process and costs.
Planning to co-own property in Ontario? Understand the key legal differences in ownership structures, read our guide on tenants in common vs joint tenancy to make informed decisions that protect your interests.
Estate Administration Bond Requirements
Ontario courts may require estate trustees to post an administration bond before granting probate.
This bond protects beneficiaries against potential losses from trustee misconduct or negligence.
Bond requirements depend on:
Estate value and complexity
Trustee's relationship to the deceased
Whether the will waive bond requirements
Court's assessment of risk factors
The bond amount usually equals the estate's gross value.
Insurance companies issue these bonds after evaluating the trustee's creditworthiness and financial stability.
We can often avoid bond requirements if the will explicitly waives them or all beneficiaries consent in writing.
This saves time and reduces administration costs.
Estate Administration Tax and Related Fees
The Estate Administration Tax is the main cost associated with probate in Ontario.
It is calculated at 1.5% on estate values over $50,000. Estate representatives must pay this fee upfront and file detailed returns within 180 days.
Calculating the Estate Administration Tax
No tax applies to estates valued at $50,000 or less.
For estates over this threshold, we calculate the tax at $15 for every $1,000 of value above $50,000.
The calculation process works as follows:
Round the estate value up to the nearest thousand
Apply no tax to the first $50,000
Calculate $15 per $1,000 on the remaining value
Example calculation for a $240,000 estate:
First $50,000: $0 tax
Remaining $190,000: $190 × $15 = $2,850 total tax
We must include all Ontario real estate, bank accounts, investments, vehicles, and business interests in the calculation.
Joint assets that transfer automatically to survivors are excluded.
Real estate is valued at fair market value on the date of death.
We can deduct mortgages and liens from property values.
Most debts cannot reduce the estate value.
Funeral expenses, credit card debts, and legal fees don't lower the taxable amount.
Paying Probate Fees
We pay the Estate Administration Tax as a deposit when applying for the estate certificate.
The estate covers this cost, not the executor personally.
Payment goes to the Superior Court of Justice, where we file the application.
We make cheques payable to the Minister of Finance.
If we discover additional assets later, we owe more tax.
Additional payments go to the same court with an affidavit explaining the revised values and reasons for the difference.
The deposit becomes the official tax once the court issues the estate certificate.
If the court denies our application, we get a full refund of the deposit.
We can request tax refunds from the Ministry of Finance if we overpaid.
The refund request must come within 12 years of the certificate being issued, and we must have filed our Estate Information Return within four years.
Filing the Estate Information Return
We must file an Estate Information Return within 180 calendar days after receiving the estate certificate.
This requirement started January 1, 2020.
Filing options include:
Online through the Ministry of Finance website
Mail or courier to the Compliance Branch in Oshawa
In person at select ServiceOntario locations
Fax to 1-866-888-3850
Online filing offers the most benefits. We get immediate confirmation, can save drafts, upload documents, and don't need passwords or signatures.
We must keep all supporting records for four years at our principal residence or business.
The ministry only requires supporting documents where specifically indicated on the return.
Amended returns are required in several situations:
When we used estimated values initially (amended return due within 60 days)
If we discover incorrect information (60 days after awareness)
When new assets are found (60 days after reporting to court)
Estates under $50,000 still need to file returns even though no tax is owed.
The 180-day deadline applies to all estates regardless of value.
Small Estate Procedures and Simplified Probate
Ontario offers a streamlined court procedure for estates valued at $150,000 or less.
Families can obtain a Small Estate Certificate with fewer requirements and faster processing times. This simplified process reduces both the complexity and cost of estate administration for modest estates.
Definition of a Small Estate in Ontario
A small estate in Ontario is an estate with a total value of $150,000 or less.
This threshold was established on April 1, 2021, through amendments to the Estates Act.
The $150,000 limit includes all estate assets at their fair market value on the date of death.
This covers real estate, bank accounts, investments, vehicles, and personal property.
Estate Administration Tax applies differently based on value:
Estates valued at $50,000 or less: No tax required
Estates valued between $50,001 and $150,000: Tax must be paid
If we discover additional assets after receiving a Small Estate Certificate, we can apply for an amended certificate if the total remains under $150,000.
If the combined value exceeds $150,000, we must switch to the regular probate process.
The small estate procedure is optional. We can choose to use the regular court procedure for any estate, regardless of value.
Applying for a Small Estate Certificate
The application process for a Small Estate Certificate follows a simplified court procedure with specific steps and timelines.
Key application requirements include:
Filing required court forms with the Superior Court of Justice
Providing the deceased's original will (if one exists)
Including proof of death documentation
Paying applicable Estate Administration Tax
We must serve copies of the application to all beneficiaries entitled to a share of the estate at least 30 days before filing with the court.
This service can be done by email or regular mail to their last known addresses.
Processing timeline:
Most applications are processed within five business days
Delays occur if documents are incomplete or judicial review is needed
The court conducts a records search to verify that no other applications exist and no objections have been filed.
If successful, we receive a Small Estate Certificate granting authority to manage the listed assets.
A bond may be required if we are not Ontario residents or if minor beneficiaries are involved and specific conditions apply.
Required Forms for Small Estates
The small estate application requires specific court forms that must be completed accurately and sworn before a Commissioner for Taking Affidavits.
Essential forms include:
| Form | Purpose |
|---|---|
| Form 74.1A | Application |
| Form 74.1B | Request to File an Application |
| Form 74.1C | Draft Small Estate Certificate |
Additional affidavit forms depend on the situation:
Form 74D: Affidavit of Execution of Will or Codicil
Form 74E: Affidavit of Condition of Will or Codicil (for altered wills)
Form 74F: Affidavit for handwritten wills
We must list all estate assets and their values in both Form 74.1A and Form 74.1C.
Asset descriptions should match the details required by the organisation holding each asset.
For example, vehicles require VIN, year, make, and model information for the Ministry of Transportation.
All applications and affidavits must be sworn before a Commissioner for Taking Affidavits who signs the documents.
The forms follow Rules 74.1 and Rule 74 of the Rules of Civil Procedure.
After Probate: Estate Distribution and Final Obligations
Once probate is granted, the estate trustee must distribute assets to beneficiaries and complete final reporting requirements.
We must also notify all relevant parties. These final steps require careful attention to tax obligations and proper documentation.
Distributing Estate Assets
The distribution of estate assets begins after probate approval but requires careful planning.
We must ensure all debts and taxes are paid before making distributions to beneficiaries.
Interim distributions allow beneficiaries to receive partial inheritances before the estate is fully settled.
This approach helps beneficiaries address immediate financial needs while we complete the remaining administrative tasks.
We typically use a holdback strategy to protect against unexpected liabilities.
The common practice involves retaining approximately 50% of the estate value until we receive final tax clearance from the Canada Revenue Agency.
Key considerations for asset distribution include:
Outstanding estate debts
Income tax obligations
Potential future claims
Beneficiary agreements
We must prioritize debts over beneficiary distributions.
This includes funeral expenses, administration costs, and all tax obligations to prevent personal liability.
The timing of distributions depends on estate complexity.
Simple estates may allow earlier distributions, while complex estates require more cautious approaches.
Final Reporting and Clearance
Final reporting involves obtaining clearance certificates and completing court requirements.
We must file all necessary tax returns and receive approval from the revenue authorities.
Form 74D serves as the final reporting document in some cases.
This form provides the court with a complete accounting of estate administration activities.
The Canada Revenue Agency issues clearance certificates once all tax obligations are met.
We cannot safely complete final distributions without these certificates.
Required reporting typically includes:
Final estate accounting
Tax return filings
Beneficiary distribution records
Outstanding liability confirmations
We must maintain detailed records throughout the process.
These records support our final accounting and protect against future challenges.
The clearance process can take several months.
We recommend beginning tax filings early to avoid delays in final distributions.
Notifying Beneficiaries and Relevant Parties
Proper notification ensures transparency and legal compliance during the distribution process. We keep beneficiaries informed of significant developments and final distributions.
Beneficiary notifications should include distribution timelines, amounts, and any conditions. Clear communication prevents misunderstandings and disputes.
We also notify financial institutions, government agencies, and other relevant parties. This includes banks, insurance companies, and pension administrators.
Essential notifications include:
Distribution amounts and timing
Final accounting summaries
Tax implications for beneficiaries
Estate closure confirmations
Written documentation of all communications protects the estate and beneficiaries. We recommend using registered mail or email receipts for important notices.
Final notifications mark the completion of estate administration. After notifying all parties and completing distributions, we can formally close the estate.
Conclusion
The probate process in Ontario involves several clear steps and usually takes 6 to 12 months. We understand this timeline can feel lengthy during a difficult time. Key factors that affect your probate timeline include estate complexity and asset types, completeness of your application, potential beneficiary disputes, and court processing times, which usually take 15 business days.
Planning ahead can help reduce probate fees and complications for your loved ones. Joint ownership and named beneficiaries are effective strategies many families use to streamline the estate process and minimize delays.
At Probate Law Group, we guide executors and beneficiaries through each step of Ontario's probate process. Book a free call to learn how we can help make estate administration smoother and more efficient during this challenging time.
Frequently Asked Questions
The probate process in Ontario has specific timelines, costs, and requirements that vary by situation. Most estates take 8 to 12 months, and probate fees are a percentage of the estate's value.
How long does probate take in Ontario?
Probate in Ontario typically takes 8 to 12 months, depending on the estate's complexity and whether disputes arise. Simple estates may move faster, while complex estates with business interests or out-of-province assets often take longer. The court process usually takes 2 to 4 weeks after all documents are submitted.
Explore our detailed breakdown of timelines, delays, and what to expect in the probate process in our guide on how long probate takes in Ontario.
What assets are not subject to probate in Ontario?
Assets held jointly with right of survivorship pass directly to the surviving owner, including joint bank accounts and real estate. Life insurance policies, RRSPs, and RRIFs with named beneficiaries also bypass probate. Trust assets avoid probate because the deceased didn't own them directly.
What are the probate rules in Ontario?
You must apply to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee using Form 74A, the original will, and supporting documents. All beneficiaries must receive proper notice, and you must provide a complete inventory of estate assets and file the deceased's final tax returns.
How much does it cost to go through probate in Ontario?
Ontario charges estate administration tax based on the estate's total value. Estates up to $50,000 pay no probate fees. Estates between $50,000 and $250,000 pay $15 for each $1,000 of value. Estates over $250,000 pay $15 per $1,000 for the first $250,000, then $15 per $1,000 for amounts above that. Legal fees and other costs vary.
Can you avoid probate in Ontario?
You can avoid probate by holding assets jointly with right of survivorship, designating beneficiaries on registered accounts and life insurance policies, or creating trusts. If the surviving spouse is the sole beneficiary of all assets, probate may not be required, depending on how assets are held.
Can an estate be settled without probate in Canada?
An estate can sometimes be settled without probate if all assets have named beneficiaries or are held jointly. Financial institutions may release small amounts without probate, but most require it for significant assets held solely in the deceased's name. Real estate almost always requires probate unless held jointly.