How to Apply for Probate in Ontario: Forms, Filing and Timeline

You have been named as estate trustee in a will, and a bank or land registry office has told you that you need probate. The process has a lot of forms and a few traps, but it follows a clear order: gather documents, notify beneficiaries, file, pay the tax, and wait for the court.

This article walks through that order for an estate trustee named in a will. It explains the usual forms, where and how to file, when a bond is needed, what happens if the court sends the application back, and what you must do once the certificate is issued.

What probate means and when it is usually needed

Probate is the court procedure that gives someone authority to act as estate trustee, confirms the authority of a trustee named in a will, or approves a will as valid. In Ontario, the document the court issues is called a Certificate of Appointment of Estate Trustee.

Probate is not always required. The type of assets usually decides it. An estate normally must be probated if the deceased owned real property, or assets held by a financial institution, in their own name.

If the estate is valued at $150,000 or less, a simplified Small Estate Certificate process may be available. Estates over that limit must apply for a Certificate of Appointment of Estate Trustee. The rest of this article covers the regular application.

The documents and forms you will need

You will need the original will and any codicils, plus proof of death, which is a death certificate or a court order. The court forms depend on your situation, and Rule 74.04 lists the forms needed for each case.

Which affidavits and consents apply to you depends on the facts, such as the condition of the will and who else could act. A lawyer can confirm the right set before you file.

Notify beneficiaries, then file

Before filing, you must send the signed application to the estate beneficiaries. If a beneficiary is a minor or an incapable adult, notice may also have to go to the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee.

File at the Superior Court of Justice in the county or district where the deceased lived at the time of death. If the deceased lived outside Ontario, file where they owned Ontario property.

Probate applications can be filed by email. The original will, codicils, bonds and ancillary certificates must still be filed in hard copy, by mail, courier or in person, at the court location where the application was filed. Filings in estate litigation are different: they go through the Civil Submissions Online portal, not the probate email process.

Paying the tax and dealing with bonds

Estate Administration Tax is paid as a deposit when you file, and it becomes the tax once the certificate is issued. The estate pays it, not you personally. Payment is by certified cheque or bank draft payable to the Minister of Finance, and it must be mailed, couriered or paid in person at the court.

For certificates applied for on or after January 1, 2020, there is no tax on the first $50,000. Above that it is $15 for every $1,000, or part of $1,000. You round the value up to the nearest $1,000. For example, a $240,000 estate pays $2,850.

• If you cannot yet confirm the total value, in some cases you can pay on an estimated value that you swear or affirm. You then undertake to file a sworn statement of the total value and pay any balance within six months after giving the undertaking.
• If you cannot afford the tax at filing, you can ask a judge for an order to pay it later, under section 4(1) of the Estate Administration Tax Act, 1998.

A bond is required when the deceased died without a will, when the applicant was not named as estate trustee in the will, or when the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country. It is generally twice the estate's value unless a judge orders otherwise, and a judge can decide on a motion to waive it. If you are named in the will and live in Ontario, a bond is often not an issue, but small estates with a minor or incapable beneficiary have their own rules, so ask if that fits.

After you file: timeline, returns and next steps

Applications are usually processed within 15 business days. It takes longer if documents are missing or a judge must decide an issue. That is a typical time, not a promise.

If court staff refuse or return the application, they send Form 74O, Registrar's Notice to Applicant, with the reason. If documents or information were missing, you can send revised or additional materials when staff ask for them. If a beneficiary has filed a Notice of Objection (Form 75.1), you must give notice to the objector (Form 75.3). If an issue needs a judge, a judge reviews the application and may make an order.

• Collect the original will, codicils and death certificate.
• Prepare the Rule 74 forms that fit your situation.
• Send the signed application to beneficiaries, and to the Children's Lawyer or Public Guardian and Trustee if required.
• Value the assets at the date of death and prepare the tax deposit.
• File with the right Superior Court of Justice location, with originals and payment in hard copy.
• Diarize 180 calendar days from the certificate date for the Estate Information Return.

Once the certificate is issued, you must file an Estate Information Return with the Ministry of Finance within 180 calendar days. It lists each asset and its value on the date of death, and must be filed even if the estate value is $0. Then the real administration begins: winding up the deceased's affairs, paying taxes, bills and debts, collecting assets, and distributing the residue to those entitled to it.

Frequently asked questions