When Is Probate Not Required in Ontario?
When Is Probate Not Required in Ontario?
Probate is not required in Ontario when assets are jointly held, have named beneficiaries, or when simplified procedures apply to smaller estates. Common situations include jointly owned property that passes directly to the surviving owner, registered accounts with beneficiary designations, and estates valued under certain thresholds.
We'll explore the specific circumstances that allow families to bypass probate, along with estate planning strategies that can help avoid this process entirely. Understanding these exceptions can help you navigate estate administration more efficiently and keep more money in your family's hands rather than paying unnecessary court fees.
Understanding Probate and the Legal Process
Probate in Ontario is a court process that validates a deceased person's will and grants legal authority to manage their estate.
The estate trustee receives a Certificate of Appointment to handle assets and distribute them according to the will.
What Is Probate in Ontario
Probate is the legal process where the Ontario Superior Court of Justice confirms that a deceased person's will is valid.
This process gives the estate trustee official authority to manage and distribute the deceased's assets.
The court issues a Certificate of Appointment of Estate Trustee with a Will.
Many people still use the older term "probate certificate" for this document.
This legal process serves two main purposes:
Validates the will to ensure it meets legal requirements
Confirms authority of the person managing the estate
The probate process protects both beneficiaries and third parties.
Banks, insurance companies, and other institutions often require this certificate before releasing assets to the estate trustee.
For a more detailed explanation, check out our guide to What Is Probate in Ontario for everything you need to know.
Role of the Estate Trustee and Executor
The estate trustee and executor are the same person with different legal names.
"Executor" refers to the person named in the will, while "estate trustee" is the court term used in probate documents.
This person has important duties:
Gather all assets belonging to the deceased
Pay debts and taxes owed by the estate
Distribute remaining assets according to the will
File required court documents and tax returns
The estate trustee must act in the best interests of all beneficiaries.
They have a legal duty to manage the estate properly and follow the terms of the will.
Before probate, the estate trustee has limited authority.
After receiving the Certificate of Appointment, they gain full legal power to act on behalf of the estate.
For a more detailed look at the executor’s role, read our full guide on the Executor of the Estate in Ontario.
The Certificate of Appointment Explained
The Certificate of Appointment of Estate Trustee with a Will is the official document that grants legal authority.
We obtain this certificate through the Ontario Superior Court of Justice probate process.
This certificate proves to financial institutions and other parties that the estate trustee has legal authority.
Without it, many organizations will not release assets or information about the deceased's accounts.
The certificate includes key information:
Name of the deceased and date of death
Name of the estate trustee appointed by the court
Value of the estate for probate fee calculation
Court seal confirming its authenticity
We must file specific documents with the court to obtain this certificate.
These include the original will, death certificate, and a detailed inventory of all estate assets.
Common Situations Where Probate Is Not Required
Probate becomes unnecessary when an estate contains no assets requiring court validation or lacks real property held in the deceased's sole name.
These scenarios eliminate the need for formal estate administration through the courts.
Absence of Estate Assets
When a deceased person leaves no estate assets, probate is not required.
This situation occurs when someone has no assets in their sole name at the time of death.
Assets that bypass the estate include:
Joint bank accounts with survivorship rights
RRSPs and RRIFs with named beneficiaries
Life insurance policies with designated beneficiaries
TFSAs with beneficiary designations
Individuals often engage in estate planning to transfer ownership of assets before death or ensure all assets have beneficiary designations.
The absence of estate assets means there is nothing for the courts to validate.
No probate application is necessary because no assets require legal transfer through the estate process.
No Real Property in the Estate
Probate is not required when the deceased owned no real estate in their sole name.
Real property often triggers probate requirements because financial institutions and land registry offices typically demand court validation.
When someone rents their home or lives in assisted care, they may own no real property.
Their estate consists only of personal belongings and accounts.
Situations where real property doesn't require probate:
Property held in joint tenancy with survivorship rights
Property already transferred before death
Property held in trust
Estates without real property face fewer probate requirements.
Banks may still request probate for large account balances, but the absence of real estate simplifies the process significantly.
Jointly Held Property and Joint Tenancy
When property is held in joint tenancy, the surviving owner automatically receives full ownership through the right of survivorship.
This means probate is not required, and a survivorship application can transfer the property instead.
Right of Survivorship Rules
Joint tenancy creates an automatic transfer of ownership when one owner dies.
The surviving joint tenant receives complete title to the property without going through probate.
Real estate held in joint tenancy passes directly to the surviving owner.
Spouses and family members often use joint tenancy to avoid probate fees.
The right of survivorship only works with true joint tenancy.
If ownership changes to tenants-in-common, probate will likely be required.
Key requirements for survivorship:
Property must be held as joint tenants (not tenants-in-common)
Both owners must be alive when the joint tenancy was created
The joint tenancy must not have been severed before death
The Survivorship Application Process
You can use a survivorship application to transfer jointly held property without probate.
This process is faster and cheaper than going through the probate system.
A real estate lawyer typically handles the survivorship application.
They prepare the necessary documents and ensure the transfer meets legal requirements.
The surviving owner needs to provide proof of death and confirm the joint tenancy was never severed.
Financial institutions and land registry offices accept these applications for property transfers.
This process works for both real estate and financial accounts held in joint tenancy.
Probate is avoided entirely when the survivorship application is properly completed.
Beneficiary Designations and Passing Assets Outside the Estate
When you name a beneficiary on specific accounts and policies, these assets pass directly to that person without going through probate.
This saves time and money while keeping these transfers private.
Life Insurance, RRSPs, TFSAs, and Pensions
Several types of accounts allow you to name beneficiaries that bypass probate entirely:
Financial Accounts That Avoid Probate:
Registered Retirement Savings Plans (RRSPs)
Registered Retirement Income Funds (RRIFs)
Tax-Free Savings Accounts (TFSAs)
Life insurance policies
Pension plans
Canada Pension Plan (CPP) death benefits
These accounts transfer directly to your named beneficiary when you die.
The beneficiary contacts the financial institution with a death certificate to receive the funds.
Important naming requirements: You must name a specific person as beneficiary, not "Estate."
If you write "Estate" as the beneficiary, the asset becomes part of your estate and requires probate.
Banks and insurance companies handle these transfers quickly.
Most beneficiaries receive funds within weeks instead of months or years.
Risks of Relying on Beneficiary Designations
Beneficiary designations can create problems if not managed properly.
Common issues can cause family disputes and unintended results.
Outdated beneficiary information causes the biggest problems.
Many people forget to update beneficiaries after divorce, remarriage, or deaths in the family.
Unequal distributions happen when you rely only on beneficiary designations.
Your RRSP might go to one child while your house goes to another, creating unfair inheritances.
Minor children cannot receive large sums directly.
If you name a child under 18 as beneficiary, the funds may need court approval anyway.
No backup plans exist when your primary beneficiary dies before you.
Without a contingent beneficiary, the asset goes to your estate and requires probate.
Review all beneficiary designations every few years and after major life events.
The First Dealings Exemption for Real Estate
The First Dealings Exemption allows certain real estate properties to bypass probate entirely, saving thousands in Estate Administration Tax.
This exemption applies to specific properties that meet strict criteria and requires proper legal verification to use.
Criteria for the First Dealings Exemption
We must verify four essential requirements before using this exemption.
Each criterion must be met exactly, or the exemption won't apply.
Property Purchase Timeline
The deceased must have bought the property during the Land Registry era. This usually means properties purchased before the mid-1990s.
Title Conversion Status
When Ontario converted the property to the Land Titles system, it must be marked as "Land Titles Conversion Qualified" (LTCQ).
You can check this status on the current title.
No Previous Dealings
The property cannot have been "dealt with" since conversion to Land Titles.
Ownership transfers count as dealings, but mortgages and survivorship applications usually don't.
Will Requirements
The deceased owned the property at death
They died with a valid will
The will controlling this property must not be probated
If you probate the will, you lose the exemption completely.
Consulting a Real Estate Lawyer
We strongly recommend getting professional legal help before using this exemption.
A real estate lawyer can conduct proper title searches and verify all criteria are met.
Why Legal Help Matters
The exemption rules are complex and specific. One mistake can invalidate your claim and force you into probate anyway.
What Lawyers Check
They review the complete title history, confirm LTCQ status, and ensure no disqualifying dealings occurred.
They also verify that the will meets all requirements.
Cost vs. Savings
Legal fees for verification are typically much less than the 1.5% Estate Administration Tax you'd pay on the property's full value.
Financial Institutions and Small Estates Discretion
Banks and credit unions can choose to release estate assets without requiring a probate application.
Each institution sets its own policies for when it will waive this requirement, typically for smaller amounts.
Bank Waiver Policies and Discretion
Financial institutions have complete control over whether they require probate for estate assets.
You cannot demand that banks release funds without proper court approval.
Most banks consider waiving probate when estate assets are under $25,000 to $50,000.
However, each institution has different internal policies and maximum amounts they will consider.
Key factors banks evaluate:
Total amount in the account
Clear identification of beneficiaries
Agreement among all beneficiaries
Minimal estate debts
No pending legal disputes
Banks are more likely to waive probate when the deceased's will clearly names beneficiaries.
They also prefer situations where all beneficiaries agree to the distribution.
Some credit unions are more flexible than major banks.
They may release smaller amounts more readily to avoid costly probate procedures.
Indemnities and Liability Considerations
When banks waive probate requirements, they protect themselves through indemnity agreements. All beneficiaries must sign these legal documents before receiving any estate assets.
The indemnity process requires:
Each beneficiary signs a bond of indemnity.
Use of the bank's standard legal forms.
Agreement to hold the bank harmless from claims.
Protection against future legal challenges.
These indemnities shift liability from the bank to the beneficiaries. If problems arise later, beneficiaries must defend the bank against any claims.
Banks provide their own indemnity forms. We must use their documents rather than creating our own agreements.
The indemnity remains in effect permanently. Beneficiaries cannot revoke this protection after signing and receiving the estate assets.
Estate Planning Strategies to Avoid Probate
Strategic estate planning can reduce or eliminate probate requirements through specific legal structures. Primary and secondary wills allow assets to bypass probate, while trusts provide another way to transfer wealth outside the probate process.
Primary and Secondary Wills
We can use a dual will strategy to separate assets that require probate from those that don't. This approach involves creating two wills for different types of assets.
The primary will covers assets that typically require probate, such as real estate, bank accounts, and investment portfolios. This will go through the standard probate process.
The secondary will handle private company shares and other assets that don't need court validation. These assets transfer directly to beneficiaries without probate fees.
This strategy works well for business owners. By keeping private company shares in a secondary will, we avoid paying probate fees on their full value.
Both wills must be properly drafted by a probate lawyer. The wills need specific language to prevent conflicts between them.
Use of Trusts in Probate Avoidance
Trusts offer another tool for probate avoidance in estate planning. Assets placed in a trust become separate from our personal estate and bypass probate.
Inter vivos trusts (living trusts) let us transfer assets while we're still alive. These trusts continue after death without court involvement.
The trustee can distribute assets directly to beneficiaries according to our instructions.
Joint partner trusts work well for married couples. These trusts help spouses reduce estate taxes and avoid probate delays.
The surviving spouse keeps access to trust assets without waiting for probate.
Trust setup requires careful planning with legal professionals. We must transfer asset ownership to the trust during our lifetime.
Assets left in our personal name will still require probate. The cost of setting up trusts may outweigh benefits for smaller estates.
We should consider our total estate value and probate fees before choosing this strategy.
Intestate Succession and Probate Requirements
When someone dies without a will in Ontario, their estate must still go through probate. The court appoints an estate trustee to handle the deceased person's assets according to specific rules.
Dying Without a Will in Ontario
Dying without a will is called dying "intestate." In Ontario, we must follow the Succession Law Reform Act to distribute the estate.
The court appoints an estate trustee to manage the deceased person's assets. This person handles all estate duties that an executor would normally do.
Probate is still required for intestate estates in most cases. The estate trustee applies to the court for legal authority to access and distribute assets.
The probate application for intestate succession requires special documents:
A bond (financial guarantee).
Proof of family relationships.
Asset valuations.
Intestate succession follows strict rules about who inherits. The spouse receives the first $200,000 plus a portion of the remaining estate.
Children split what's left according to legal formulas.
We cannot avoid probate just because there's no will. The same asset thresholds and requirements apply to intestate estates as to estates with wills.
Conclusion
Probate is not always required in Ontario when assets pass outside the estate. Joint ownership, designated beneficiaries, and trust arrangements can help avoid this legal process entirely.
The key factor is how assets are titled and structured before death. Assets held solely in the deceased's name typically require probate, while jointly held assets or those with named beneficiaries often do not.
At Probate Law Group, we help Ontario families navigate probate requirements and develop strategies to minimize court involvement when possible. Our experienced team can review your specific situation and recommend the best approach for your estate planning needs.
Frequently Asked Questions
Many people have questions about when probate is required in Ontario and what exceptions exist. Understanding the circumstances that allow estates to bypass probate can help families plan ahead and save time and money.
What are the exceptions to probate in Ontario?
Jointly owned assets, assets with named beneficiaries, and assets held in trust usually avoid probate. Small estates under $150,000 may use simplified procedures.
How do you avoid probate in Ontario?
Hold assets jointly, name beneficiaries, or place assets in a trust. Keeping your estate below $150,000 may also simplify the process.
How much does an estate have to be worth to go to probate in Ontario?
There’s no minimum value, but estates under $150,000 can use an easier process. The asset type matters more than the estate’s total value.
How long does probate take in Ontario when there is no will?
It usually takes longer than regular probate. Preparing documents can take months, and court processing typically takes about 15 business days after submission.
Does every will in Ontario have to go through probate?
No. Wills for estates with only jointly owned assets or named beneficiaries may not need probate. It depends on the asset type and what institutions require.
Who inherits when there is no will in Ontario?
The spouse inherits everything if there are no children. If there are children, the spouse gets the first $350,000, and the rest is shared with the children. If there’s no spouse, children inherit; if no children, parents or next closest relatives inherit.