Probate With a Will vs. Without a Will in Ontario: Key Differences

When someone in Ontario dies, the probate process — obtaining a Certificate of Appointment of Estate Trustee from the Superior Court of Justice — takes one of two forms depending on whether the deceased left a valid will. Understanding the difference matters whether you're the person doing estate planning or a family member suddenly responsible for an estate.

This article compares the two pathways side by side: what's the same, what's different, and why dying without a valid will creates extra complexity, cost, and delay.

The Two Pathways at a Glance

Probate With a Will: Certificate of Appointment of Estate Trustee With a Will

How It Works

The person named as estate trustee in the will files the original will with the Superior Court of Justice along with the required application documents and affidavits. The court confirms:

1. The will is valid on its face (properly signed and witnessed).
2. The applicant is the person named as estate trustee in that will.

If satisfied, the court issues the Certificate of Appointment, and the will becomes a public document on file at the court.

What the Will Provides

A properly drafted will gives the estate trustee clear authority and instructions:

• Who the beneficiaries are and in what proportions they inherit.
• Whether specific items go to specific people (specific bequests).
• How debts and taxes are to be handled.
• Whether the estate trustee can act without posting a bond (most wills include such a clause, saving time and expense).
• Instructions for minor beneficiaries' inheritance (trusts, age-of-distribution provisions).

What Can Still Go Wrong

A will does not prevent disputes. Common problems include:

• An unhappy family member challenging the will's validity on grounds of lack of capacity or undue influence.
• A dependant not adequately provided for making a dependant's relief claim under the Succession Law Reform Act.
• A beneficiary who predeceased the testator (the person who made the will), leaving a lapsed gift.
• An outdated will that doesn't reflect the deceased's actual wishes or current family situation.

Probate Without a Will: Certificate of Appointment of Estate Trustee Without a Will

How It Works

When someone dies intestate — without a valid will — there is no named estate trustee. A family member or other eligible person must apply to the court to be appointed. The court does not automatically know who should administer the estate; someone has to step forward.

Who Can Apply?

Ontario law sets out a priority order for who may apply to be appointed estate trustee without a will. As of writing, the general priority order favours the spouse, then children, then other relatives — but the precise statutory order should be verified with a lawyer, as it can interact with complex family situations (step-children, separated spouses, common-law partners). Disputes about who has priority to apply are one of the most common sources of family conflict in intestate estates.

Bond Requirement

In without-a-will applications, the court more commonly requires the applicant to post a bond — a financial security instrument that protects beneficiaries and creditors in case the trustee mismanages the estate. Bonds cost money (a percentage of the bond amount, paid as a premium to a surety company) and take time to arrange. The court can dispense with a bond in certain circumstances, including where all beneficiaries consent and are capable adults.

How the Estate Is Distributed Intestate

Without a will, the estate does not go entirely to the spouse or entirely to the children — the Succession Law Reform Act prescribes a specific formula. As of writing, the rules give a spouse a "preferential share" before the remainder is divided between the spouse and any children. The exact amounts and proportions are set in the legislation and can change; verify current figures. Common-law partners do not inherit under the intestacy formula — a major gap that a will would close.

Extra Complications Without a Will

• No executor named: Someone must volunteer and court must approve.
• No guardian of minor children nominated: A court application for guardianship may be needed separately.
• No direction on specific items: Household contents, vehicles, sentimental items all go through the formula rather than the deceased's wishes.
• Business interests: Without instructions on how to handle a business interest, the estate trustee must manage or sell it under the intestacy rules, which may not be what the deceased (or the business partners) would have wanted.

Why the Difference Matters for Estate Planning

The choice to make — or not make — a will is the single most powerful lever available in estate planning. A valid will:

• Names the person you trust to administer your estate.
• Directs your assets to the people and causes you choose.
• Minimizes family conflict by providing clear instructions.
• Can waive the bond requirement, saving the estate money.
• Can establish trusts for children or other beneficiaries.
• Can reduce delay by eliminating ambiguity about authority.

The cost of drafting a will is modest relative to the savings — in time, tax, legal fees, and family stress — that a good will can produce.

Frequently asked questions