How to Apply for Probate With a Will in Ontario: Forms, Notice and Filing

You have been named as an estate trustee in a will, and you have been told you need probate. The process is paperwork-heavy but it follows a predictable order: decide whether you need a certificate, gather the forms, give notice, file, and then deal with what comes after.

This guide walks through that order for an application for a Certificate of Appointment of Estate Trustee With a Will in Ontario. It does not cover making a will, applying when there is no will, tax rates or notices of objection, which are separate topics.

Do you actually need probate?

Ontario guidance says that if the deceased owned real property or assets held by a financial institution, the estate normally has to be probated. It also advises checking whether the institution requires a certificate of appointment or a small estate certificate.

Probate is not always required. Assets held jointly, or with a designated beneficiary such as an insurance policy or a joint bank account, pass according to how they are owned or designated. Land is a common reason to apply: the Land Titles Act generally requires the estate trustee to obtain a certificate of appointment before dealing with land after an owner dies.

You are also not obliged to act. A person named in a will does not have to serve as estate trustee. If you are one of several named people and you will not be applying, you may need to renounce, which is covered below.

Where to file and what to gather

File in the county or district where the deceased had a fixed place of abode. If the deceased had no fixed place of abode in Ontario, file where the property is located.

The usual package is made up of the following items:

For a holograph will, which is a will written wholly in the deceased's own handwriting and signed, you need a Form 74F affidavit confirming that the handwriting and signature are the deceased's. If a witness to the will has died or cannot be found, the court can require other evidence that the will was properly signed. The application and affidavits must be signed before a Commissioner for taking affidavits, who must also sign them.

Co-executors who are not applying, and notice to beneficiaries

If other people are entitled to act but are not joining your application, the rules require renunciations from them. A renunciation is made on Form 74G (Part A), and a consent to someone else's appointment is made on Form 74G (Part B). Be aware of what renouncing means for the person who signs: an executor who renounces probate loses all rights as executor, and the estate then passes as though that person had never been named. Anyone considering this should understand it before signing.

The application must be served on every beneficiary, including charities and contingent beneficiaries. Ontario guidance says this is done before filing, by email or by mail or courier to each person's last known contact details. Proof of that service goes into your Form 74B or 74B.1.

Some beneficiaries need extra steps:

• Minors: serve the minor's parent or guardian and also the Children's Lawyer.
• Unborn or unascertained beneficiaries: the Office of the Children's Lawyer should also be served.
• Mentally incapable adults: serve the guardian, the attorney, or the Public Guardian and Trustee, depending on who has authority.
• If the Children's Lawyer or the Public Guardian and Trustee is served and there is a will, include a statement of the estimated value of that person's interest.

Filing, bond and the tax deposit

Probate applications may be filed with the Superior Court of Justice by email. Original wills, codicils, administration bonds and certified copies must still be filed on paper, in person, by mail or by courier. The original will and any codicils must be attached as an exhibit to an affidavit.

A bond is required if the applicant was not named as estate trustee, or if the applicant lives outside Ontario, another Canadian province or territory, or a Commonwealth country. Personal sureties must be adult Ontario residents: two if the estate is over $100,000, one if it is $100,000 or less. Generally the bond is for double the sworn value of the estate, though a judge may reduce it or dispense with it.

The Estate Administration Tax is paid as a deposit when you file. Payments must be made in person or sent by mail or courier to the court office. The estate pays the tax, not you personally. If your deposit is based on an estimated value, you must undertake to file a sworn statement of the actual value and pay any additional tax within six months.

After you file: processing and what comes next

Applications are typically processed within 15 business days. The registrar may ask for further information, and applications that raise issues must be referred to a judge. A refused application receives a Registrar's Notice (Form 74O) stating the reason, and missing documents can be supplied when court staff ask for them.

An approved certificate is issued electronically and sent by email unless you asked for a paper certificate. Once it issues, two deadlines apply to you as estate trustee, and there is one time limit for others that is worth knowing about:

• File the Estate Information Return with the Ministry of Finance within 180 calendar days after the certificate is issued, even if no tax is payable.
• File an amended return within 60 days of learning that information was incomplete or inaccurate.
• Keep in mind that a dependant who was not adequately provided for may apply for support from the estate, and that application generally must be made within six months of the grant of the certificate.

What to do next

• Confirm which assets actually need a certificate before you start.
• Locate the original will and any codicils, and keep them safe.
• List every beneficiary, including charities and contingent beneficiaries, with current contact details.
• Identify any minors, incapable adults or possible unborn beneficiaries early, since they change who must be served.
• Collect documents that support the value of each asset.
• Book a Commissioner for taking affidavits and sign everything in front of them.
• Speak with a lawyer if the will is damaged, altered, handwritten, or if a witness cannot be found.

Frequently asked questions