How to Prove You Are the Executor of an Estate in Ontario

You are named as executor, and a bank, a land buyer or another institution tells you to prove it. Your first reaction may be that the will says so. In practice, institutions often want more than the will.

This article explains in general terms when a will can be enough, when a court document is normally needed, and what to do while you wait. Every estate differs, so a lawyer can confirm what applies to yours.

Being named is not the same as being appointed

Ontario describes the estate trustee's role as winding up the deceased's affairs, paying taxes, bills and debts, and collecting the assets and distributing the residue to those entitled. A person named as estate trustee is not required to act. You can decide whether to take on the job.

The estate trustee named in the will typically applies for the court certificate, although they may let someone else apply. Real and personal property of a deceased person that does not pass by survivorship vests in the personal representative as trustee for the persons beneficially entitled, subject to payment of debts. Institutions want to see court confirmation before they treat you as that person.

When a certificate is normally needed

Ontario says probate is not always required, but if the deceased owned real property or assets held by a financial institution the estate normally has to be probated. The court documents are a Certificate of Appointment of Estate Trustee or, for estates valued at $150,000 or less, a Small Estate Certificate.

A Small Estate Certificate gives authority over the assets listed in it. That means it is not a general authority over anything the estate may later turn up, so list assets carefully.

Land transfers have their own rules

For a land transfer by an estate trustee, Land Registry guidance calls for a solicitor's statements that the transferor is entitled to transfer under the will and estate legislation. The proof of authority is either a certificate of appointment or a statement that no application was made because the estate is not more than $50,000, in which case a covenant to indemnify the Land Titles Assurance Fund (Form 54) is required.

In practice, a buyer's lawyer may still ask for a certificate, and a will alone does not by itself prove authority to transfer land. Current Land Registry practice should be confirmed with a lawyer.

Common mix-ups

• A continuing power of attorney ends when the person dies, so an attorney can no longer use it on the person's accounts.
• If the deceased did not live in Ontario, the application is filed at the court location where they owned Ontario property.
• A bond may be required if you are not an Ontario resident, or live in another Canadian province or territory or a Commonwealth country. The statute speaks of residence in Ontario or elsewhere in the Commonwealth and allows a judge to dispense with or reduce security in special circumstances.
• If a bond is required, it is set at double the amount at which the property was sworn, though a judge may reduce or dispense with it in special circumstances.

If you held a power of attorney for the deceased, retain accounts and records until the events set out in the regulation, including the death and delivery of the accounts and records to the personal representative.

What to do next

• Locate the original will and confirm you are the person named. Ask the estates division of the local court if a will may have been filed.
• Decide whether you want to act, since you are not required to.
• List assets and estimate their value to see whether a Small Estate Certificate or full certificate fits.
• Tell banks and financial institutions of the death, and ask what documents each requires.
• Do not move money or sign a land transfer until your authority is confirmed.
• Remember the Estate Information Return is due within 180 calendar days of the certificate being issued.
• Speak to an Ontario estates lawyer about the application and any bond.

Frequently asked questions