When Is a Bond Required for Probate in Ontario?
When someone dies and leaves behind an estate, the person handling the affairs may need to post a bond before the court allows them to proceed.
A bond is typically required in Ontario when there is no will, when the person applying is not named as executor in the will, or when the executor lives outside of Ontario.
Understanding these requirements helps estate trustees avoid delays and unexpected costs during the probate process.
The bond acts as insurance to protect beneficiaries and creditors if the estate trustee mishandles the estate.
For estates under $150,000, different rules may apply that can eliminate the bonding requirement entirely.
The court can also waive the bond requirement in certain situations if it determines the estate and beneficiaries are adequately protected.
Navigating bond requirements can be complicated because the rules depend on several factors.
The presence of a will, the location where the estate trustee lives, and whether any beneficiaries are minors all affect whether bonding is necessary.
This article explains when bonds are required, how to obtain them, and how estate trustees can request that the court dispense with the bonding requirement.
Understanding Probate Bonds in Ontario
An estate administration bond acts as insurance that protects beneficiaries and creditors when an estate trustee manages a deceased person's assets.
Under Section 35 of the Estates Act, the statutory default bond amount equals double the sworn value of the estate's property. However, courts routinely exercise their discretion under Section 37(2) of the Estates Act to reduce this to match the estate's actual value, creating a financial safety net if something goes wrong during estate administration.
Estate trustees should be prepared for the possibility that a court may require the full double-value bond in certain circumstances, though most applications result in reduced bond amounts.
Purpose of an Estate Administration Bond
A probate bond guarantees that the estate trustee will properly manage the deceased's assets and distribute them according to the law.
The bond comes from an insurance company and provides financial coverage if the trustee mishandles estate funds or fails to follow their legal duties.
Courts require estate bonds in specific situations.
When there is no will, a bond protects everyone who might inherit from the estate.
If someone other than the named executor applies for the probate certificate, the court needs assurance they will act responsibly.
Section 6 of the Estates Act addresses residency requirements for bonds. A named executor living in a Commonwealth country (including other Canadian provinces, the United Kingdom, Australia, and other Commonwealth nations) does not need to post a bond when there is a valid will. However, executors residing in non-Commonwealth countries (such as the United States) must obtain a bond regardless of whether a will exists.
The statutory bond amount under Section 35 of the Estates Act is double the estate's sworn value. In practice, Ontario courts routinely exercise their discretion under Section 37(2) to reduce this to the actual estate value. This ensures sufficient coverage to protect beneficiaries and creditors without imposing excessive costs on the estate.
Section 36(3) of the Estates Act provides an automatic exemption from bonding for estates under $150,000 if the estate trustee resides in a Commonwealth country and there are no minor or incapable beneficiaries.
How Probate Bonds Protect Beneficiaries and Creditors
Estate administration bonds protect everyone with a financial interest in the estate.
If the trustee steals money, makes poor investment choices, or fails to pay valid debts, beneficiaries and creditors can file claims against the surety bond.
The insurance company that issues the bond investigates claims and pays out valid losses up to the bond's limit.
This protection matters most when beneficiaries are children or adults who cannot manage their own finances.
Creditors also benefit because the bond ensures they can recover money owed to them even if the trustee spends estate funds improperly.
The bond shifts financial risk away from vulnerable parties.
Without this protection, beneficiaries and creditors would need to sue the trustee personally and hope that person has enough assets to cover the loss.
When Is a Bond Required During Probate?
Ontario law sets out specific situations where an estate trustee must obtain an administration bond before receiving court approval.
The requirement typically applies when there is no will, when the person applying is not named as executor, or when the estate trustee lives outside the Commonwealth.
Intestate Estates and Lack of a Will
When a person dies without a valid will, the estate is considered intestate.
The probate application must request a Certificate of Appointment of Estate Trustee Without a Will.
In these cases, Section 6 of the Estates Act requires an administration bond regardless of where the applicant resides, unless the court waives this requirement.
This requirement exists because intestacy situations carry higher risk.
No one was specifically chosen or trusted by the deceased to manage the estate.
The bond protects beneficiaries and creditors if the estate trustee mismanages funds or fails to fulfill their duties properly.
Section 36(3) of the Estates Act provides an automatic exemption for small estates valued under $150,000. The applicant must be a resident of a Commonwealth country, and no beneficiary can be a minor or an incapable person. If these conditions are met, no bond is required even in intestacy cases.
Unspecified or Unavailable Estate Trustee
A bond becomes necessary when the person applying for probate is not the named executor in the will.
This situation arises when the original executor has died, become incapable, or refuses to act.
Rule 74.11 of the Rules of Civil Procedure governs these appointments.
The court requires a bond because the deceased did not specifically select this person to manage the estate.
Section 35 of the Estates Act sets the statutory bond amount at double the estate's value. However, courts typically exercise their discretion under Section 37(2) to reduce the bond amount to match the actual estate value as stated in the application for a certificate of appointment of estate trustee. Estate trustees should be aware that the court retains the authority to require the full double-value bond if circumstances warrant additional protection for beneficiaries.
Estate trustees can avoid this requirement by bringing a motion to dispense with the bond.
The court will grant this relief if satisfied that beneficiaries and creditors have adequate protection without it.
All adult beneficiaries must typically consent to waiving the bond requirement.
Non-Resident and Foreign Estate Trustee Requirements
Estate trustees who reside outside Ontario face different bonding rules depending on their location and whether a will exists.
Section 6 of the Estates Act exempts executors residing in Commonwealth countries from posting security when there is a valid will. This exemption applies to executors living elsewhere in Canada, the United Kingdom, Australia, and other Commonwealth nations.
Executors from non-Commonwealth countries (such as the United States) must obtain an administration bond regardless of whether a will exists. This requirement under Section 6 of the Estates Act reflects the practical challenges of enforcing court orders across international borders with countries outside the Commonwealth.
For intestate estates (where there is no will), a bond is required regardless of whether the applicant lives in Ontario, elsewhere in Canada, or in a Commonwealth country.
The small estate exception under Section 36(3) of the Estates Act applies when estates are valued under $150,000, the executor resides in a Commonwealth country, and there are no minor or incapable beneficiaries.
Geographic location plays a significant role in determining bond requirements during the probate application process.
Exceptions and Situations When a Bond May Not Be Required
Ontario law provides several exceptions where estate trustees can avoid posting an estate administration bond.
These exemptions apply to small estates, government appointments, and situations where beneficiaries provide consent under the Estates Act.
Small Estate Certificate Exemptions
Small estates in Ontario may bypass the standard probate process entirely through arrangements with financial institutions, which eliminates any court involvement and therefore any bonding requirement.
When an estate's total value falls below certain thresholds set by individual financial institutions, banks and other asset holders often release funds directly to beneficiaries without requiring a Certificate of Appointment.
The specific value threshold varies between institutions, with many banks accepting estates under $30,000 to $50,000 without formal probate based on their own internal policies.
This exemption simplifies estate administration for families dealing with modest assets.
Estate trustees should contact each financial institution holding the deceased's assets to confirm their specific requirements.
It's important to note that the first $50,000 of an estate is exempt from Estate Administration Tax under the Estate Administration Tax Act, 1998, but this tax threshold is separate from whether probate or bonding is required.
Government and Trust Company Appointments
The Estates Act exempts certain applicants from bond requirements based on their legal status.
When the Government of Ontario, any provincial ministry, commission, or board applies to act as estate trustee, no bond is necessary.
The Public Guardian and Trustee also receives this exemption when appointed to administer estates.
Trust companies and other corporations licensed to provide estate trustee services typically do not need to post bonds.
Their existing regulatory oversight and capital requirements provide sufficient protection for beneficiaries.
These entities already maintain insurance and meet strict financial standards under provincial regulations.
Bond Waivers for Certain Beneficiaries
Estate trustees can avoid posting a bond when all beneficiaries consent to waive this requirement.
This waiver must be documented properly and submitted with the application for certificate of appointment.
Well-drafted wills often include clauses that explicitly waive the bond requirement, which is the simplest way to avoid this cost.
The consent of all adult beneficiaries is required for a valid waiver.
When minor beneficiaries are involved, the situation becomes more complex.
The Office of the Children's Lawyer must review and approve any waiver affecting a beneficiary under 18 years old.
Estate trustees can also file a motion asking probate court to dispense with the bond requirement.
The court may grant this request if satisfied that the bond is unnecessary to protect the estate and beneficiaries.
This process requires a formal application and may involve legal costs that should be weighed against the bond premium.
How to Apply for and Obtain a Probate Bond
Getting a probate bond involves submitting personal financial information to a surety company and completing the right forms for the court.
The process requires proof of financial responsibility and coordination between the estate trustee, the surety provider, and the legal system.
Required Documentation and Forms
Estate trustees must complete specific court forms when applying for probate with a bond. As of August 13, 2025, Ontario Regulation 72/25 updated the forms used in estate applications.
For regular probate applications (estates over $150,000), estate trustees use Form 74A (Application for Certificate of Appointment of Estate Trustee with a Will) or the corresponding form for estates without a will.
For small estates under $150,000, applicants use Form 74.1A to apply for a Small Estate Certificate. Form 74.1E is now used specifically for applications to amend a Small Estate Certificate.
The surety company will ask for detailed personal financial information before issuing the bond.
This includes bank statements, tax returns, property ownership records, and proof of assets.
The company wants to see that the applicant has enough personal wealth and financial stability to cover potential losses.
Lack of transparency can cause major delays in the probate process.
If the applicant does not provide complete paperwork to prove their personal net worth, the surety company cannot approve the application.
Estate trustees should gather all financial documents early to avoid holdups.
Working With Surety Bond Providers
Only a limited number of insurance companies in Ontario issue probate bonds.
Estate trustees need to qualify based on their financial standing and creditworthiness.
The surety provider reviews the applicant's financial history to assess risk before agreeing to issue the bond.
Bond premiums vary based on the estate's value.
Estates under $500,000 typically pay between 1.5% and 2% of the estate value.
For estates worth $500,000 to $1 million, premiums range from 1% to 2%.
Estates over $1 million usually pay 1% to 1.5%.
Estate lawyers can help negotiate with bonding companies to get better terms.
They understand what documentation the surety providers need and can present the application in the strongest way possible.
Working with experienced legal counsel often speeds up the approval process and reduces complications.
Dispensing With or Reducing a Bond Requirement
Ontario law permits estate trustees to request relief from bond requirements through a court application when special circumstances exist.
The court evaluates whether creditors and beneficiaries receive adequate protection through alternative means.
Court Application Process
Estate trustees can apply to dispense with or reduce a bond under section 37(2) of the Estates Act.
Rule 74.11 of the Rules of Civil Procedure, amended on July 1, 2022, formalizes the process for making these requests.
When submitting the request alongside an application for a certificate of appointment, estate trustees avoid the motion process if two conditions are met.
First, all beneficiaries entitled to share in the estate distribution must consent to the request.
Second, no beneficiaries can be minors or mentally incapable persons under the Substitute Decisions Act, 1992.
Probate court judges exercise discretion in granting these requests.
They consider whether the estate's creditors and beneficiaries receive sufficient protection without a bond.
For example, courts may dispense with bonds when the estate has minimal debts or when the trustee demonstrates strong fiduciary capacity.
Supporting Evidence and Beneficiary Consents
The application requires specific documentation to satisfy probate court requirements.
Estate trustees must file Form 74H showing beneficiaries' consent to dispense with the bond.
They also submit an affidavit in Form 4D containing detailed estate information.
The affidavit must disclose the deceased's debts at death, the estate's asset values, and particulars of each creditor claim.
Estate trustees outline any payment arrangements with creditors and describe alternative security measures protecting their interests.
This transparency helps courts assess whether bond protection is necessary.
A draft order in Form 74I completes the filing requirements.
Estate litigation risks decrease when trustees provide comprehensive financial information and secure beneficiary cooperation early in the process.
Practical Considerations for Estate Trustees and Beneficiaries
Bond costs can significantly impact estate administration expenses.
The choice of estate trustee directly affects whether bonding becomes necessary.
These practical factors shape both the timeline and financial outcome of the probate process.
Impact of Bond Costs on the Estate
Bond cost typically ranges from 1% to 3% of the estate's total value annually.
For an estate worth $500,000, this means paying between $5,000 and $15,000 per year until the estate closes.
The estate itself usually covers these expenses, which reduces the inheritance that beneficiaries receive.
Estate administration becomes more complex when bond costs are high.
The estate trustee must factor these ongoing expenses into the estate's budget and timeline.
Large estates face particularly significant costs, as insurance companies calculate premiums based on the total estate value.
Beneficiaries should understand that bond costs come directly from estate assets.
This means their inheritance decreases by the amount paid for bonding.
In some cases, the cost of obtaining and maintaining a bond throughout the estate administration process can consume a substantial portion of smaller estates.
Selecting the Right Estate Trustee
Naming an executor who resides in Ontario or another Commonwealth country eliminates the automatic bonding requirement when there is a valid will under Section 6 of the Estates Act. This choice can save the estate significant money and time.
The person selected should be trustworthy and organized. They must also be capable of handling financial matters.
Estate beneficiaries have an interest in who serves as estate trustee. When all beneficiaries are adults and can manage their finances, they can agree to waive the bond requirement even if bonding would normally apply.
The estate trustee's location is important. An executor living in a non-Commonwealth country (such as the United States) triggers mandatory bonding under Section 6 of the Estates Act unless the court grants an exemption.
Appointing someone not named in the will as executor creates extra bonding obligations. This increases costs and complexity for everyone involved.
Recent Changes and Legal Updates Impacting Probate Bond Requirements
Ontario Regulation 72/25 made important changes to probate bond requirements in August 2025. The updates changed court forms and made the bond waiver process more complex to protect beneficiaries.
Updated Ontario Court Forms and Procedures
The August 2025 updates aligned bond language across estate court forms with Rule 74.11(5) of the Rules of Civil Procedure. This provides clearer guidance on when estate trustees must post a bond before receiving their certificate of appointment.
Forms 74A, 74J, and 74.1A now include revised bond sections that match the procedural rules. The standardized language helps reduce confusion for applicants and court staff.
The Ministry also streamlined the objection process. When someone files a Notice of Objection to a small estate application, registrars now send Form 74.1D (Notice to Applicant) informing them of the objection.
Form 74.1E is now used specifically for applications to amend a Small Estate Certificate, clarifying its distinct purpose. Form 75.2 was revoked to eliminate redundancy.
Documents signed before August 13, 2025 are generally accepted until December 31, 2025 under Ministry directive. Some court offices have rejected older versions despite this grace period, so using updated forms is recommended.
Changes to Bond Waiver Applications
Ontario introduced a more complex process for applications to waive bond requirements. The changes focus on protecting beneficiaries over administrative convenience.
Applicants seeking to dispense with a bond must now provide more service details. This includes specifying the recipient's legal role, method of service, date and location of service, and supporting proof like affidavits or delivery confirmations.
The expanded requirements apply when serving the Children's Lawyer, Public Guardian and Trustee, guardians, attorneys for property, or litigation guardians. These parties receive better notice of bond waiver requests and can object if they believe a bond is needed to protect estate assets.
Conclusion
Knowing when a bond is required helps executors avoid delays in probate. A bond protects beneficiaries and creditors if the estate trustee does not perform their duties properly.
The main situations requiring a bond include when there is no will (intestacy), when the executor is not named in the will, or when the executor lives outside the Commonwealth.
Section 6 of the Estates Act exempts named executors who reside in Commonwealth countries (including other Canadian provinces, the UK, and Australia) from posting a bond when there is a valid will, while executors from non-Commonwealth countries (such as the United States) must post a bond regardless.
Small estates under $150,000 often qualify for automatic bond exemptions under Section 36(3) of the Estates Act. The executor must live in a Commonwealth country, and no beneficiary can be a minor or incapable adult.
When a bond is required but difficult to obtain, the executor can ask the court to waive this requirement through a motion. This process requires proper evidence and documentation to show the estate and beneficiaries are protected.
B.I.G. Probate Law Ontario helps executors navigate bond requirements and prepare applications to dispense with bonds. The firm handles the paperwork and court procedures as part of their probate services.
Contact B.I.G. Probate Law Ontario at 289-301-3338 or email Info@probatelaw-ontario.ca to discuss estate administration needs.
Book a free call or visit probatelawgroup.ca for more information about probate services in Ontario.
Frequently Asked Questions
Estate trustees and beneficiaries often have questions about bonding requirements in Ontario probate cases. Understanding when bonds are needed and how they work helps people navigate the estate administration process more easily.
What is the purpose of a bond in probate?
A probate bond acts as insurance to protect estate beneficiaries and creditors. The bond provides financial security if an estate trustee mismanages assets or fails to distribute the estate properly.
This protection is especially important when the estate trustee is not named in the will, lives outside the Commonwealth, or when no will exists.
How is the value of a probate bond determined for Ontario estates?
Section 35 of the Estates Act sets the statutory bond amount at double the estate's sworn value. However, courts routinely exercise their discretion under Section 37(2) of the Estates Act to reduce the bond to the actual estate value. Insurance companies calculate the premium based on the estate's worth and risk level.
The premium amount varies depending on the estate trustee's financial history and the complexity of the estate. Estate trustees should be prepared for the possibility that a court may require the full double-value bond, though reduced amounts are more common in practice.
Can a probate bond be waived and under what conditions in Ontario?
The court can waive the bond requirement if it decides protection is not necessary. Estate trustees must bring a motion asking the court to dispense with the bond.
The motion must include evidence such as beneficiary consents, proof of debts paid, and details about any minor or incapable beneficiaries.
Section 36(3) of the Estates Act provides an automatic bond exemption for small estates under $150,000 when the estate trustee lives in a Commonwealth country and no beneficiary is a minor or incapable adult.
What are the consequences of not securing a probate bond when required in Ontario?
The court will reject the application for a Certificate of Estate Trustee if a required bond is not obtained. Without this certificate, the estate trustee cannot access estate assets or distribute them to beneficiaries.
Financial institutions will not release funds or transfer property without proper court appointment. The estate administration process stops until the trustee either secures a bond or obtains a court order dispensing with the requirement.
Who is typically responsible for purchasing the probate bond in Ontario?
The estate trustee who applies for appointment must obtain the bond. This person must contact insurance companies or specialized brokers to arrange the bond before submitting their probate application.
The cost of the bond is usually paid from estate funds as an estate administration expense.
What are the steps involved in acquiring a probate bond for estate administration in Ontario?
The estate trustee must first determine if a bond is required. They should contact a specialized broker with experience in Ontario estate bonds.
The application process requires financial information and details about the estate. Documentation about the deceased's assets and debts is also needed.
The insurance company reviews the application and assesses risk. They then decide whether to issue the bond.
Getting a bond approved can be difficult and expensive. Many estate trustees work with lawyers to prepare a motion to dispense with the bond instead.