How to Apply for Probate in Ontario When There Is a Will

If you have been named as executor in a will, you may need a court document before banks or land registry offices will deal with you. In Ontario the application follows a set order of steps, and missing one usually slows things down.

This article walks through the process for an estate with a will: who applies, what to gather, how to give notice, where to file and pay, and what happens afterwards. Your own situation may differ, so a lawyer can confirm the details.

What probate is and who applies

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. An estate normally must be probated if the deceased owned real property, or assets held by a financial institution, in their own name. When there is a will, the estate trustee named in it usually applies.

Gather your documents and forms

You will need the original will and any codicils, and proof of death, which is a death certificate or a court order. The court forms include the following.

• Form 74A, the application, sworn before a Commissioner for Taking Affidavits.
• Form 74B or 74B.1, proof of service.
• Form 74C, the draft certificate.
• Depending on the case, an affidavit such as Form 74D (execution of will), 74E (condition of will) or 74F (handwritten will).

Rule 74.04 lists the forms needed for each situation, so check it or ask a lawyer which ones apply to you.

Give notice, then file and pay

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 the application 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.

The Estate Administration Tax is paid on filing, by certified cheque or bank draft payable to the Minister of Finance. It is paid as a deposit that becomes the tax once the certificate is issued, and the estate pays it, not you personally. There is no tax on the first $50,000 of the estate's value. Above that, the tax is $15 for every $1,000, or part of $1,000. To calculate it, round the value up to the nearest $1,000.

Email, hard copies and timing

Probate applications can be filed by email. However, the original will, codicils, bonds and ancillary certificates must be filed in hard copy at the court location where the application was filed, and the tax payment must also be mailed, couriered or paid in person there.

The email process does not apply to documents filed in estate litigation. Those go through the Civil Submissions Online portal, like other civil litigation documents.

Applications are usually processed within 15 business days. It takes longer if documents are missing or a judge must decide an issue.

Bonds, small estates and next steps

A bond may still be needed in some cases with a will, for example if the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country. A judge may waive or reduce the security in special circumstances.

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.

• Confirm that the estate needs probate.
• Collect the original will, codicils and proof of death.
• Complete the forms and swear Form 74A before a commissioner.
• Send the signed application to the beneficiaries.
• File at the correct court with the tax deposit.
• After the certificate is issued, file the Estate Information Return with the Ministry of Finance within 180 calendar days, even if the estate value is $0.

Frequently asked questions