Probate Application Returned or Refused in Ontario: Next Steps

Getting your probate application back from the court is stressful, especially when you are already dealing with a death.

This article explains what the court's notice means, the usual reasons applications come back, how to send in what is missing, and what happens if a beneficiary objects or a judge has to decide an issue. It is general information for Ontario, not advice on your file.

What the notice from the court means

When an application for a Certificate of Appointment of Estate Trustee is refused, court staff send Form 74O, Registrar's Notice to Applicant, which gives the reason for the refusal. Read it closely, because it tells you what has to be fixed.

If you applied through the simplified small estate process, a refused application receives Form 74.1D, Registrar's Notice to Applicant. That process is open to estates valued at $150,000 or less.

What an application needs so it is not returned

• The court form that fits your situation. The Rules of Civil Procedure list which forms apply.
• The application itself, along with any affidavit or consent that applies to your situation.
• The original will and any codicils, if there is a will.
• A bond, if one is required.
• Notice to anyone who has to receive it. Who that is depends on your situation, so it is worth confirming with a lawyer.

A bond is 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. The bond is generally twice the estate's value unless a judge orders otherwise, and a judge can decide on a motion to waive it. For a small estate with no will and minor or incapable adult beneficiaries, a bond is needed unless the applicant is the deceased's spouse and has filed an affidavit asking the court to dispense with it.

Sending revised or additional materials

If documents or information were missing, you can send revised or additional materials when court staff ask for them. Respond to exactly what the notice requests, and keep copies of everything you send.

Probate 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. The tax is paid by certified cheque or bank draft payable to the Minister of Finance.

If you are dealing with estate litigation, different rules apply: the email process for probate applications does not cover those documents, which are filed through the Civil Submissions Online portal.

Objections and judge review

If a beneficiary has filed a Notice of Objection (Form 75.1), you must give notice to the objector using Form 75.3. If an issue needs a judge to decide it, a judge reviews the application and may make an order.

Disputes like these can change the path of the application, so this is a point where legal advice is often worth getting.

Delays, refunds and what to do next

Applications are usually processed within 15 business days, and small estate applications usually within five business days. Processing takes longer if documents are missing or a judge must decide an issue. These are usual times, not promises.

The tax is paid as a deposit when you file, and it becomes the tax once the certificate is issued. The Superior Court of Justice refunds a deposit only if no certificate has been issued.

• Read Form 74O (or 74.1D) and note the stated reason.
• Check the forms against Rule 74.04 for your situation.
• Confirm the original will, proof of death and any bond are in order.
• Confirm every beneficiary, and any required public office, has been given notice.
• Send hard copy originals and the tax payment to the correct court location.
• Keep copies and note any dates in the court's request.
• If an objection or a judge's decision is involved, speak to a lawyer.

Frequently asked questions