What an Estate Trustee Can Do Before Probate Is Granted in Ontario

If you are named as executor in a will, it is natural to want to start straight away: secure the home, notify the bank and pay the bills. It helps to know which steps are safe to take early and which ones should wait for the court's certificate.

This article sets out the general Ontario position. The exact answer for your estate depends on the assets, the will and the institutions involved, so it is worth confirming with a lawyer.

Do you have to act?

A person named in a will does not have to act as estate trustee. If you renounce, you lose all rights as executor and the estate passes as though you had never been named. A renunciation is made on Form 74G (Part A).

If you are undecided, take care before doing anything that looks like acting. Anyone with a financial interest can ask the court to require a named executor to accept or refuse the role. Whether a particular early step affects your ability to renounce later depends on the facts, so ask a lawyer first.

If the named trustee declines or cannot act, the beneficiaries may nominate someone else. A consent to someone else's appointment is made on Form 74G (Part B). Where a named executor refuses to prove the will, the court may grant administration to the deceased's spouse or common-law partner, to the next of kin, or to both, as it thinks best.

Preparing while you wait for the certificate

Under the Estates Administration Act, the deceased's property vests in the personal representative, who holds it as trustee for the people entitled, subject to the payment of debts. How far that lets you deal with a particular asset before a certificate is issued depends on the asset and the institution, so the steps below are mainly preparation.

• Locate the original will and any codicils.
• Arrange the funeral and keep the receipts, since funeral and burial expenses are paid before distribution.
• Gather information on assets, debts and beneficiaries.
• Prepare the probate application, including the forms for the court.
• Keep the property safe and insured, and keep careful records.

If you cannot find the will, the places to look include the deceased's home, a safety deposit box, a lawyer's office, private will registries and court records. Each registrar's office is also a depository for the wills of living persons, and the court may order anyone to produce a testamentary document they have.

What generally needs the certificate

If the deceased owned real property or held assets at a financial institution, the estate normally has to be probated. Institutions may require a certificate of appointment or a small estate certificate before they act.

There is a narrow exception for land. Where there is a will, the certificate may be waived for the first dealing after a Registry-to-Land-Titles conversion, but an indemnity covenant is still required. Real property not dealt with within three years of death vests in the beneficiaries without a conveyance, unless a caution is registered in the prescribed form.

Probate is not always required. Assets held jointly or with a designated beneficiary, such as an insurance policy or a joint bank account, pass according to how they are owned or designated.

Taking care with money and distributions

Even when you have authority, be careful about paying beneficiaries early. A personal representative who has given the required notices may distribute and is not liable to a creditor whose claim they had no notice of at the time. If assets cannot pay all debts, they are paid proportionately.

An interested person can require the estate trustee to pass accounts, and the judge may hear complaints of misconduct, neglect or default that caused loss. Keeping a clear ledger from the first day protects you.

A personal representative is entitled to a fair and reasonable allowance for their care, pains, trouble and time, as allowed by a judge. The Superior Court of Justice may also remove a personal representative on any ground that would justify removing another trustee.

What to do next

• Decide whether you will act, or renounce on Form 74G (Part A).
• Collect the original will and proof of death.
• Ask each bank and the land registry what it requires before it will deal with you.
• Remember the Estate Administration Tax is paid as a deposit when the application is filed.
• Note the Estate Information Return is due within 180 calendar days after the certificate is issued.
• Get legal advice before selling property or distributing anything.

Frequently asked questions