Probate Application Rejected in Ontario: What to Do Next

Getting your probate application back from the court is stressful, especially when you are grieving and trying to settle an estate. In most cases the problem is a missing document or a step that was skipped, and it can be fixed.

This article explains what the Registrar's Notice to Applicant means, what usually happens next, and how to check your materials before you send them again. Every estate is different, so a lawyer can confirm what applies to yours.

What the Registrar's Notice to Applicant tells you

When court staff refuse or return an application for a Certificate of Appointment of Estate Trustee, they send Form 74O, Registrar's Notice to Applicant. It gives the reason the application was refused. For a small estate application that is refused, the notice is Form 74.1D, Registrar's Notice to Applicant.

Read the stated reason carefully. It tells you whether you need to add something, correct something, or deal with a bigger issue such as an objection.

What happens next, depending on the reason

Processing is usually about 15 business days, but it takes longer if documents are missing or a judge must decide an issue. Small estate applications are usually processed within five business days. These are typical times, not promises.

Check the documents before you resubmit

A missing or incomplete document is a common reason for delay. The usual package includes the original will and any codicils, proof of death (a death certificate or court order), and court forms.

• 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).
• Bond forms 74L or 74M, and renunciations or consents (Form 74G), where they apply.

Rule 74.04 lists the forms needed for each situation. For a small estate, the forms are 74.1A (application), 74.1B (request to file) and 74.1C (draft certificate), plus an affidavit 74D, 74E or 74F as needed.

Notice, courthouse, bond and payment

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. For a small estate, the application must be sent to beneficiaries or their legal representatives 30 days before filing.

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

A bond is required when the deceased died without a will, when you were not named as estate trustee in the will, or when you do 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. Small estates have their own exceptions, including for a spouse applying where there is no will.

The Estate Administration Tax is paid on filing, by certified cheque or bank draft payable to the 'Minister of Finance'. 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. The tax payment must also be mailed, couriered or paid in person there.

What to do next

• Read the reason in Form 74O or Form 74.1D line by line.
• Gather what is missing and compare your package to the list above and to Rule 74.04.
• Confirm notice went to every beneficiary, and to the Office of the Children's Lawyer or Public Guardian and Trustee if needed.
• Confirm you are dealing with the correct courthouse.
• Send originals and the tax payment in hard copy.
• If there is an objection or a judge is involved, speak with a lawyer.

The court refunds the tax deposit only if no certificate has been issued. If the situation is complicated, a lawyer can help you decide how to proceed.

Frequently asked questions