Probate Without a Will in Ontario: How the Estate Tax Applies

A relative has died without a will, and you are the one trying to sort things out. You may be wondering whether the estate tax works differently when there is no will, and who is even allowed to apply.

This article explains in general terms how Ontario's Estate Administration Tax applies to an estate with no will, who can apply, and what extra paperwork to expect. A lawyer can confirm how it applies to your family.

Does the tax change when there is no will?

The tax is charged when an estate certificate is applied for and issued. If no certificate is applied for or issued, no tax is owed. The amount is worked out from the estate's value, as set out below.

For applications on or after January 1, 2020, no tax is payable on an estate worth $50,000 or less. Above $50,000, the tax is $15 for every $1,000 (or part of $1,000) of value over $50,000. The value is rounded up to the nearest thousand dollars. The tax is paid by the estate, not personally by the estate representative.

Who can apply when there is no will

Where there is no will, the deceased's spouse or common-law partner usually has the first right to apply for probate. After them, a close adult relative (child, parent, grandchild, sibling, or nephew or niece) can apply, and the court may appoint whichever relative it considers most appropriate.

Once appointed, an estate trustee is responsible for winding up the deceased's affairs: paying taxes, bills and other debts, collecting the estate's assets, and distributing the residue to those entitled to it.

Forms and the bond

Probate applications with or without a will use Form 74A (Application for a Certificate of Appointment of Estate Trustee). Without a will, Form 74G Part B (consent to the applicant's appointment) is also needed. Form 74A asks for the total value of real property, the total value of personal property, and the total estate value.

A bond is required when the deceased died without a will. The bond is generally double the estate's value unless a judge orders otherwise. This is a significant extra step that people often do not expect, so ask a lawyer how it would work for your estate.

What counts toward the value

• Ontario real estate at its appraised value on the date of death, less encumbrances such as mortgages or liens.
• Bank accounts, investments, vehicles and vessels, business interests and other property wherever situated.
• RRSPs, RRIFs and TFSAs where the estate is the beneficiary, and insurance payable to the estate.
• Left out: jointly owned assets that pass automatically to the surviving owner, insurance paid to a named beneficiary, and registered plans with a beneficiary designation.

A tenant in common's share does not pass automatically to the other owners. It becomes part of their estate and counts if probate is sought. Only encumbrances on real property can be deducted. Funeral expenses, lawyer's fees, credit card debt and similar items do not reduce the value.

Small estates and what to do next

Since April 1, 2021, a small estate for probate purposes is one valued at $150,000 or less. The application is Form 74.1A, filed with Form 74.1B, together with a draft Small Estate Certificate (Form 74.1C). Tax is still paid on value over $50,000, and it is paid when the application is filed unless it is not payable or the court orders it deferred.

After the certificate is issued, the Estate Information Return must be filed with the Ministry of Finance within 180 calendar days, even if no tax is owed.

• Confirm whether you are the right person to apply, based on your relationship to the deceased.
• List every asset and debt, and sort out which pass outside the estate.
• Get appraisals and statements to support each value.
• Gather what you need for Form 74G Part B (consent to the applicant's appointment) and ask a lawyer how the bond would work for your estate.
• Diarize the 180-day return deadline once the certificate is issued.

Frequently asked questions