What Is Probate in Ontario and What Does the Court Actually Do?

If someone close to you has died, you may have heard that the estate has to go through probate. The word sounds technical, but the idea is fairly simple: it is how a court confirms who has the authority to deal with the deceased person's property.

This page explains what probate means in Ontario, what the certificate actually is, and what the Superior Court of Justice does with your application. It also covers what happens afterwards, because the certificate is the start of the work, not the end.

Probate in plain words

Probate is the court procedure for giving someone authority to act as estate trustee, confirming the authority of a trustee named in a will, or approving a will as valid. In Ontario, the document the court issues is called a Certificate of Appointment of Estate Trustee.

Think of the certificate as proof of authority. Banks, land registry offices and other institutions often want to see that the person dealing with the deceased's property really has the right to do so. Land registry staff, for example, accept a certificate of appointment of estate trustee as proof of an estate trustee's authority to deal with a deceased owner's land.

Probate is not always required. The type of assets usually decides whether it is needed, and an estate normally must be probated if the deceased owned real property, or assets held by a financial institution, in their own name.

What the Superior Court does with your application

The application goes to the Superior Court of Justice in the county or district where the deceased lived at the time of death. If the deceased lived outside Ontario, you file where they owned Ontario property.

• You assemble the original will and any codicils, proof of death (a death certificate or court order), and the court forms.
• The main forms include Form 74A (the application, sworn before a Commissioner for Taking Affidavits), Form 74B or 74B.1 (proof of service) and Form 74C (the draft certificate).
• Before filing, you send the signed application to the estate beneficiaries, and in some cases notice must also go to the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee.
• The Estate Administration Tax is paid as a deposit when the application is filed, by certified cheque or bank draft payable to the 'Minister of Finance'. Estates worth $50,000 or less pay no tax. In some cases an applicant can pay on an estimated value and file a sworn statement later, or ask a judge for an order to pay the tax later.

Applications can be filed by email, but the original will, codicils, bonds and ancillary certificates must be filed in hard copy at the court location where the application was filed, and the tax payment must also be mailed, couriered or paid in person there.

Applications are usually processed within 15 business days, and it takes longer if documents are missing or a judge must decide an issue. That is a typical time, not a promise, and it can vary.

When an application is refused or returned

If an application is refused or returned, court staff send Form 74O, Registrar's Notice to Applicant, which gives the reason. If documents or information were missing, you can send revised or additional materials when staff ask for them.

If a beneficiary has filed a Notice of Objection (Form 75.1), the applicant must give notice to the objector (Form 75.3). If an issue needs a judge, a judge reviews the application and may make an order.

Disagreements about a will can also lead to separate litigation. The Superior Court can appoint an administrator while an action is pending about the validity of a will, and Rule 74.01 calls this person an estate trustee during litigation. That person has general powers except distributing the residue and is under the court's direct control.

What probate does not do for you

The certificate gives you authority, but it does not do the work. After it is issued, estate trustees wind up the deceased's affairs, pay taxes, bills and other debts, collect the estate assets, and distribute the residue to those entitled to it.

Tax is part of that work. The legal representative should get a CRA clearance certificate before distributing the estate, because a representative who distributes first is personally liable for any tax debt, up to the value of the assets distributed. The Estate Administration Tax is paid by the estate, not by the estate representative personally. How a family disagreement affects your situation depends on the facts, so it is worth confirming with a lawyer.

Who applies and what to do next

If there is a will, the estate trustee named in it usually applies. If there is no will, the married spouse or common-law partner usually has first right to apply, followed by a close adult relative, and the court may appoint the most appropriate relative. If the named trustee declines or cannot act, the beneficiaries may nominate another person.

A bond may be needed if the deceased died without a will, if the applicant was not named as estate trustee in the will, or if the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country.

• Locate the original will and any codicils.
• Order death certificates.
• List the deceased's assets and how each is held.
• Decide whether probate is needed for those assets.
• Speak with a lawyer if there is a dispute, a missing will, or a non-resident applicant.

Frequently asked questions