Proving You Are an Entitled Beneficiary of an Ontario Estate

You may believe you are entitled to share in an estate, but your name is not on any paper you have seen, or you have no will, certificate or family records in hand. That is a common and stressful position.

This article explains the notice rights Ontario gives people who are entitled, how a will and later events can change who receives a gift, and practical steps for gathering what you need.

Entitlement starts with the will and the facts

Estate trustees carry out the wishes set out in the will, wind up the deceased's affairs, pay taxes, bills and other debts, and then distribute the estate according to the will. So the will is usually the first document that shows who is entitled.

If you are not named, or there is no will, whether you are entitled depends on your relationship to the deceased and on Ontario's rules about who inherits. A lawyer can confirm how those rules apply to your family. The kind of proof needed, such as records showing a family relationship, depends on your claim and is also worth confirming.

Notice you should receive

A person applying for probate, which is a certificate of appointment of estate trustee, must send or give a copy of the application form to everyone entitled to a share of the estate, and must do so before filing with the court.

If a beneficiary is a minor or an incapable adult, the application may also need to be sent to the Office of the Children's Lawyer and the Office of the Public Guardian and Trustee.

For small estates of $150,000 or less, as of April 1, 2021, the signed application for a Small Estate Certificate must reach everyone entitled to a share 30 days before filing, and Form 74.1B confirms that this notice was given.

If you think you are entitled and have received nothing, you can ask the estate trustee whether an application is planned or has been made.

Things that can change who receives a gift

Even if a will names someone, later events or rules may change the result. Some examples that may apply to your situation:

• If a person who witnessed the will, or that person's spouse, is a beneficiary, the gift to them is void, but the rest of the will stays valid. The gift is not void if at least two other people who are not beneficiaries or their spouses also witnessed it, or if no witnesses were needed, as with a holograph will.
• Unless the will shows a contrary intention, a gift to a former spouse, and their appointment as executor or trustee, are revoked after divorce or a declaration of nullity.
• If a gift to the testator's child, grandchild, brother or sister fails because that person died first and left a spouse or issue, the gift generally does not lapse unless the will shows a contrary intention.
• A beneficiary who survived the testator but died before payout generally passes their share to their own estate, unless the will imposes a survivorship condition.

A surviving spouse also has a choice to make when there is a will: to take under the will or to receive the equalization entitlement. The election must be filed within six months after the first spouse's death. No distribution may be made from a deceased spouse's estate within six months of death unless the surviving spouse consents in writing or the court authorizes it.

Asking for accounts and raising objections

Under rule 74.15 of the Rules of Civil Procedure, any person who appears to have a financial interest in an estate may move for an order requiring the estate trustee to pass accounts.

When accounts are passed, the notice of application (Form 74.44) states that objections must be served at least 35 days before the hearing. The court decides only the issues raised in filed notices of objection, and if no objection is filed, the estate trustee may obtain judgment without a hearing. That makes timing important if you want to be heard.

Estates are still presumed to be wrapped up within one year of death, although the court accepts that this may be unreasonable when an estate is not simple.

What to do next

• Find out whether a will exists and who the estate trustee is, and ask for a copy of the will.
• Collect anything that shows your connection to the deceased, such as family records, letters or other papers.
• Write down what you know about the family and the deceased's assets.
• Ask the estate trustee whether a probate application has been or will be made.
• Speak with a lawyer early, because deadlines for objections and elections can be short.

A lawyer can tell you what proof your claim needs and which steps to take first.

Frequently asked questions