Incapable Beneficiary and Probate: Notice to the Public Guardian and Trustee

One of the people named in the will or entitled on an intestacy may not be able to manage their own affairs because of a lack of capacity. As executor, you still need to give that person proper notice of the probate application, and the usual step of mailing them a copy may not be enough.

This article explains who receives notice on behalf of an incapable beneficiary, how the Public Guardian and Trustee can be served, and how this can affect your timeline. A lawyer can confirm how the rules apply to your estate, especially where capacity is disputed.

Why notice works differently

Before filing, the applicant must send a copy of the signed application to each estate beneficiary, meaning everyone entitled to a share. For minors or incapable adults, the Office of the Children's Lawyer and the Public Guardian and Trustee may also need to be served.

The reason is practical. A person who cannot understand the application cannot respond to it, object to it or protect their own interest. Service through someone with legal authority keeps the process fair.

Who is served for the incapable person

Under O. Reg. 231/07 (Service of Documents), a person who is incapable under the Substitute Decisions Act is served through their fiduciary with authority to act in the matter. If there is no such fiduciary, service is on both the Public Guardian and Trustee and the individual.

Who counts as a fiduciary with the right authority depends on the documents in place, such as a guardianship order or power of attorney. Ask the family for copies and have a lawyer confirm whether they cover this kind of matter.

How to serve the Public Guardian and Trustee

Court documents can be served on the Public Guardian and Trustee by email at PGT-Legal-Documents@ontario.ca, in person, or by mail at 595 Bay Street, Suite 800, Toronto, Ontario M5G 2M6.

Keep proof of how and when you served. The application package includes an affidavit of service (Form 74B) or a lawyer's certificate of service (Form 74B.1).

What this does to timing

Service happens before filing, so any delay in identifying the right person delays the whole application. Once filed, applications are typically processed within 15 business days, and longer if documents are missing or a judge must decide an issue.

For a small estate valued at $150,000 or less, a copy of the signed application must go to everyone entitled to a share at least 30 days before filing, and Form 74.1B must confirm that. That waiting period matters if an incapable beneficiary's representative takes time to find.

• Delay is most likely when nobody can confirm who holds authority for the incapable person.
• Missing or incomplete documents can lengthen processing.
• Questions about whether the person is truly incapable can raise issues a judge may need to decide, which can add time.

When the Public Guardian and Trustee steps in as trustee

This is a different role. If a named executor has died or become incapable and no eligible person can administer the estate, the Office of the Public Guardian and Trustee may apply to be appointed estate trustee of last resort, and other conditions also apply. If a named trustee or alternate declines or cannot act, beneficiaries may nominate another person.

When the OPGT is estate trustee, its fees follow a regulation under the Public Guardian and Trustee Act, and professional services such as tax filings, legal work or real estate maintenance are paid from the estate as expenses.

What to do next

• List every beneficiary and note anyone who may lack capacity.
• Ask the family whether a guardian or attorney for property is already acting, and request copies of the documents.
• Decide who must be served for that person.
• Prepare to serve the Public Guardian and Trustee if no fiduciary exists.
• Keep proof of service for the court file.
• Get legal advice if capacity is uncertain or contested.

Frequently asked questions