How to Find Out If Someone Died With a Will in Ontario

When a relative dies, one of the first questions is whether there is a will. The answer decides who is in charge of the estate and how the process starts.

This article walks through where people usually look, what the answer means for probate, and what can happen if the person named in the will will not step up. Every estate is different, so a lawyer can confirm the details for yours.

Where to look first

There is no single place that always holds a will. A careful search usually works through several places in turn.

• The deceased's home: desk, filing cabinet, fireproof box or safe.
• A safety deposit box at their bank (the bank may have its own rules about access).
• The lawyer, notary or accountant they used, who may hold the original or know where it is.
• Family members, close friends or the person you think may be named as executor.
• Recent mail, bank statements or emails that mention a lawyer or a storage service.

If you find a copy but not the original, do not assume it is useless, and do not throw anything away. A lawyer can explain what happens when only a copy turns up.

Why it matters whether the estate needs probate

If the deceased owned real property that does not pass by survivorship, or held assets with a financial institution, the estate normally has to be probated. Probate means applying to the court for an estate certificate that proves who has authority to act.

There are exceptions. A surviving joint tenant registers title by a survivorship application under Land Titles Act s. 123, not through probate. An estate worth $150,000 or less (from April 1, 2021) can apply for a Small Estate Certificate, which covers only the assets listed in it.

Estate Administration Tax applies to certificates applied for on or after January 1, 2020. There is no tax on the first $50,000, then $15 for every $1,000 (or part) above that. Jointly held assets that pass automatically to the other owner, and RRSPs, RRIFs, TFSAs and pension plans with a beneficiary designation, are left out of the estate's value for this tax.

If a will names someone who does not want the job

A person named in a will as estate trustee does not have to act. If they renounce, their rights in the executorship end and the estate passes as if they had never been appointed. A named estate trustee who has not joined the application signs a Renunciation on Form 74G, Part A.

If the named person simply does nothing, anyone with a financial interest in the estate may move under rule 74.15 for an order that they accept or refuse the appointment. A person who fails to respond within the stated time is deemed to have renounced.

Renunciation is generally available only to someone who has not yet been appointed and has not taken steps to administer the estate. After that, stepping aside takes retirement or removal by court order.

If there is no will

Without a will, someone must apply for administration. Administration may be granted to the person the deceased was married to, or to a person the deceased was living with in a conjugal relationship outside marriage. A common-law partner can therefore apply to be estate trustee even though they do not inherit on intestacy.

An administration bond (Form 74L or 74M) is required where there is no will, and it is generally double the estate's value. A judge may dispense with it on a motion. No bond is required for a small estate unless a beneficiary is a minor or legally incapable. The Public Guardian and Trustee may act as estate trustee of last resort, for example where the executor has since died or become incapable.

What to do next

• Search the likely places above and write down what you find and when.
• Identify who is named as estate trustee and ask whether they will act.
• Make a list of the deceased's assets and debts so you know whether probate is likely.
• Do not distribute anything or pay beneficiaries before authority is confirmed.
• Speak with an estate lawyer if the will cannot be found, the executor will not act, or family members disagree.

Frequently asked questions