Common Reasons Probate Is Delayed in Ontario and How to Avoid Them

You have filed, or you are about to, and nothing seems to be moving. Probate can feel slow when you are also grieving and waiting to pay bills or deal with property. Often the cause is something small that could have been fixed before filing.

This article walks through the usual reasons an Ontario probate application stalls, and what you can do about each one. Your situation may involve facts not covered here, so a lawyer can confirm what applies to you.

What a normal timeline looks like

Applications are typically processed within 15 business days. That is a typical figure, not a promise, and it assumes the court has what it needs.

During review, the registrar may ask for further information, and must refer applications that raise issues to a judge. A referral to a judge is where many longer delays begin. If an application is refused, you receive a Registrar's Notice (Form 74O) stating the reason, and missing documents can be supplied when court staff ask for them.

Missing or incorrect documents

The most common problem is an incomplete package. The checklist includes the following:

• Form 74A application
• Form 74B affidavit of service, or Form 74B.1 lawyer's certificate of service
• Form 74C draft certificate
• the original will and any codicils
• Form 74D affidavit of execution, or Form 74E (altered or marked will) or Form 74F (holograph will) as needed
• proof of death
• renunciations and consents on Form 74G
• a bond on Form 74L or 74M where required

The application and affidavits must be signed before a Commissioner for taking affidavits, who must also sign them. Applications may be filed with the Superior Court of Justice by email, but original wills, codicils, administration bonds and certified copies must still be filed on paper. The original will and any codicils must be attached as an exhibit to an affidavit. Filing in the wrong location also causes trouble: you file in the county or district where the deceased had a fixed place of abode, or, if there was none in Ontario, where the property is located.

Notice, consents and bonds

The application must be served on every beneficiary, including charities and contingent beneficiaries, before filing. Special rules add steps and can slow things down:

• If a beneficiary is a minor, service is also required on the minor's parent or guardian and on the Children's Lawyer.
• If there may be unborn or unascertained beneficiaries, the Office of the Children's Lawyer should also be served.
• For a mentally incapable beneficiary, service is required on the guardian, the attorney, or the Public Guardian and Trustee, depending on who has authority.

Consents and renunciations matter too. Rule 74.04(1) requires renunciations from people entitled to act who are not joining the application. When there is no will, it requires Form 74G consents from beneficiaries who together hold a majority interest in the value of the estate's assets at the date of death. If the deceased had no adult next of kin in Ontario and there is no will, the local registrar must notify the Public Guardian and Trustee before letters of administration issue to anyone else, and the Public Guardian and Trustee has 30 days from notice to apply unless it consents sooner.

A bond is required if there is no will, 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. Arranging sureties takes time, so start early. There are exceptions, including some small estates and some surviving spouses on an intestacy.

Questions about the will or the estate's value

A will that was not signed and witnessed correctly can raise issues. A formal will is valid only if it is signed at its end by the testator, or by someone else in the testator's presence and at the testator's direction, and the signature is made or acknowledged in front of two or more witnesses present at the same time, who then sign in the testator's presence. There is an exception for a will wholly in the testator's own handwriting and signed by the testator. It is valid without witnesses, but it needs a Form 74F affidavit confirming the handwriting and signature. If a witness has died or cannot be found, the court may require other evidence of due execution. For deaths on or after January 1, 2022, the Superior Court of Justice may validate a document that was not properly executed if it is satisfied the document sets out the deceased's testamentary intentions.

Valuation is another source of questions. Assets must be valued at fair market value at the date of death, and you should be able to support each value with documents such as statements or an appraiser's opinion. Real estate outside Ontario is not counted, but other property worldwide is. Unsecured debts such as credit card balances cannot be deducted, while mortgages and liens on Ontario real estate can. If the tax deposit is based on an estimate, you must undertake to file a sworn statement of the actual value and pay any additional tax within six months. Estate administration tax payments must be made in person or sent by mail or courier to the court office.

What to do next

• Check every item on the document list against your package before filing.
• Confirm who must be served and who must consent, including minors and incapable adults.
• Gather statements, appraisals and other support for each asset value.
• Book a Commissioner for taking affidavits and plan for paper filing of originals.
• If the named executor will not decide, ask a lawyer about a motion requiring them to accept or refuse.
• If you have a financial interest and want to be told of a filing, ask about a request for notice on Form 74P.

If the registrar refers your file to a judge, or someone objects, speak to a lawyer about the options.

Frequently asked questions