What an Executor Can Do Before the Certificate of Appointment Arrives

You have been named as executor, the person has died, and the application for probate is moving slowly. Meanwhile the funeral bill is due, the house needs insurance, and family members are asking when they will see anything. It is natural to wonder what you are allowed to do now.

This article walks through the early tasks Ontario's guidance describes, the steps that are better left until later, and the questions to ask before you act on any asset. It is general information. Because the answer can turn on the asset and on the institution involved, a lawyer should confirm your situation.

Why the certificate matters

Ontario treats probate as normally necessary when the deceased owned real property or assets held by a financial institution. It is also typically needed when there is no will, no named estate trustee, or a dispute about the trustee or will.

Ontario advises checking whether the institution holding an asset requires a certificate or a small estate certificate. Ontario's administering-estates guidance does not set out a list of actions you may take before the certificate issues, so do not assume that something is allowed simply because it seems urgent.

A named executor is also not required to act. If you are unsure you want the role, that decision comes before any of the steps below.

Early tasks Ontario's guidance describes

An executor winds up the deceased's affairs by paying taxes, bills and debts, collecting assets and distributing the rest. Ontario's guidance on what to do when someone dies lists these early executor duties:

• File the deceased's tax return.
• Tell banks and financial institutions of the death.
• Contact the Family Responsibility Office if support was being paid.

Only the next of kin or the executor can order a certified copy of the death registration. You will likely need several certified copies for institutions, so ordering them early is a sensible practical step.

Keeping a running record of every call, document and payment is also wise. It is not a legal requirement stated in these sources, but it will help later if anyone asks you to account for what you did.

Steps that are better to hold back

Some steps carry real risk if taken too soon. The clearest example is distribution. Distributing estate assets before getting a CRA clearance certificate makes the representative personally liable for unpaid tax up to the value of the assets distributed. CRA says to apply only after returns are filed, assessed and paid, and it acknowledges applications within 45 days but may take up to 120 days.

For other actions, such as selling or transferring property, or closing accounts, the answer depends on the asset and on what the institution or the land registry will accept without a certificate. Those are exactly the questions to put to a lawyer before you act.

Paying bills and watching the tax dates

Estate professional costs, such as tax filing, legal work and property maintenance, are paid from the estate as expenses. Keep receipts and avoid mixing estate money with your own.

Deadlines keep running while you wait. For a death between January 1 and October 31, the final return is due April 30 of the next year. For a death between November 1 and December 31, it is due six months after death. If the deceased or their spouse was self-employed, the date is June 15 of the next year for a death between January 1 and December 15. Late filing with a balance owing carries a 5% penalty plus 1% per full month, up to 12 months, and compound daily interest.

The Estate Administration Tax is paid by the estate, not by you personally. It is paid as a deposit when the certificate application is filed and becomes the tax once the certificate is issued. If the estate cannot afford the tax at application, a judge can order payment later under s. 4(1) of the Estate Administration Tax Act, 1998.

Helping the application move smoothly

Applications are typically processed within 15 business days but may take longer. A few checks can help you avoid problems with the application:

• Send or give the application to the estate beneficiaries before filing, with a copy signed before a Commissioner for Taking Affidavits.
• If minor or incapable adult beneficiaries are involved, the application may also need to go to the Office of the Children's Lawyer and the Office of the Public Guardian and Trustee.
• Court staff search for a more recent will deposited with the court, and the certificate may be refused if one exists.
• Submit any codicil, since one that alters the will may require Form 74E.
• If the estate is valued at $150,000 or less, a small estate certificate using Form 74.1A may apply.

What to do next

• Order several certified copies of the death registration.
• List the assets and debts, and note which institutions hold each asset.
• Ask each institution what it requires from an executor before the certificate issues.
• Mark the final return due date from the table of CRA dates.
• Keep estate money separate and keep every receipt.
• Hold off on distributions until you have advice on CRA clearance.
• Speak with a lawyer about any urgent step on real estate or accounts.

Frequently asked questions