How to Probate a Will in Ontario: Step-by-Step Process

If you are named as the executor (the estate trustee) in someone's will, probate can feel like a maze of forms. In practice it is a fairly ordered process: confirm you need it, gather documents, notify beneficiaries, file, pay the tax and wait for the court.

This article walks through those steps in order. Every estate is different, so use it as a map, and speak to a lawyer if the estate is large, the family is in conflict or something in the will is unclear.

Step 1: Confirm that you need probate

Probate is the court procedure for giving someone authority to act as estate trustee, confirming the authority of a trustee named in a will, or approving a will as valid. In Ontario, the document the court issues is called a Certificate of Appointment of Estate Trustee.

It 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. If the estate is worth $150,000 or less, a simplified Small Estate Certificate process is available, and larger estates must apply for the full certificate.

If there is a will, the estate trustee named in it usually applies.

Step 2: Gather your documents

You will need the original will and any codicils, plus proof of death such as a death certificate or court order. The court forms include Form 74A (the application, sworn before a Commissioner for Taking Affidavits), Form 74B or 74B.1 (proof of service) and Form 74C (the draft certificate).

Depending on the case, you may also need an affidavit such as Form 74D (execution of will), 74E (condition of will) or 74F (handwritten will), bond forms, and renunciations or consents. Rule 74.04 lists the forms needed for each situation.

• The original will and any codicils
• A death certificate or court order
• Form 74A, Form 74B or 74B.1, and Form 74C
• Any affidavits that apply to your will
• A certified cheque or bank draft payable to the Minister of Finance for the Estate Administration Tax
• Bond forms, if a bond is required

Step 3: Notify beneficiaries and check whether a bond is needed

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.

A bond is generally 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.

There are exceptions for small estates. Subject to the rule for non-resident applicants, no bond is required for a small estate unless a beneficiary is a minor or is incapable. If there are minor or incapable adult beneficiaries and there is no will, a bond is needed unless the applicant is the deceased's spouse and has filed an affidavit asking the court to dispense with it. A non-resident applicant (outside Ontario, Canada or the Commonwealth) still needs a bond.

Step 4: File the application and pay the tax

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

Applications can be filed by email, but the original will, codicils, bonds and ancillary certificates must be filed in hard copy at the court location where the application was filed. Estate Administration Tax payments must also be mailed, couriered or paid in person there.

For certificates applied for on or after January 1, 2020, there is no tax on the first $50,000 of the estate, and $15 for every $1,000, or part of $1,000, above that. Round the value up to the nearest $1,000. For example, a $500,000 estate pays 450 x $15 = $6,750. The tax is paid as a deposit on filing, by certified cheque or bank draft payable to the Minister of Finance, and it becomes the tax once the certificate is issued.

Step 5: Wait for the court, and respond if needed

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

If the application is refused or returned, court staff send Form 74O, Registrar's Notice to Applicant, giving 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.

What to do next

Once the certificate is issued, you must file an Estate Information Return with the Ministry of Finance within 180 calendar days, even if the estate value is $0. Keep copies of everything you filed, and get legal advice early if there is a possible objection, a missing asset or a complex business interest.

Frequently asked questions