What Is Probate in Ontario? The Certificate of Appointment Explained

You may have heard "probate" used as if it were a single, scary step that every family must go through. In Ontario the word is common in conversation, but the court paperwork uses a different name, which can be confusing when you start reading forms.

This page explains what probate is, what the court actually hands you, who applies, and what happens afterwards, in plain terms.

What probate means

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 everyday terms, it is the court's way of telling banks, land registry offices and other institutions: this person is the one with authority to deal with the deceased's property. Institutions want that proof because they need to know they are handing assets to the right person.

The document: a Certificate of Appointment of Estate Trustee

In Ontario, the document the court issues is called a Certificate of Appointment of Estate Trustee. That is the official name for what most people call the probate certificate, or "probate".

The name reflects what the document does. It appoints, or confirms the appointment of, the person who will manage the estate. 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.

Who applies and when probate is needed

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.

Probate is not always required. The type of assets usually decides it, and an estate normally must be probated if the deceased owned real property, or assets held by a financial institution, in their own name. Whether your situation needs a certificate depends on the facts, so it is worth confirming.

How the application works

• Gather the original will and any codicils, proof of death such as a death certificate or court order, and the court forms.
• The 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). Other affidavits, bond forms and consents may be needed depending on the case.
• Before filing, send the signed application to the estate beneficiaries. Notice may also have to go to the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee if a beneficiary is a minor or an incapable adult.
• File at the Superior Court of Justice in the county or district where the deceased lived at death. If they lived outside Ontario, file where they owned Ontario property.
• Pay the Estate Administration Tax on filing.

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. Applications are usually processed within 15 business days, and longer if documents are missing or a judge must decide an issue.

If the court refuses or returns an application, staff send Form 74O, Registrar's Notice to Applicant, giving the reason. When documents were missing, the applicant can send revised or additional materials.

After the certificate: what the estate trustee does

With the certificate in hand, the estate trustee winds up the deceased's affairs, pays taxes, bills and other debts, collects the estate's assets, and distributes the residue to those entitled to it.

Before distributing, the legal representative should get a CRA clearance certificate. A representative who distributes first is personally liable for any tax debt, up to the value of the assets distributed. A trustee is also entitled to a fair and reasonable allowance for their time and trouble, as a judge of the Superior Court of Justice allows, unless the will itself fixes the allowance.

If you have just been named as an estate trustee, take a breath. You can start by locating the original will, ordering death certificates, and listing the assets. A lawyer can confirm whether you need a certificate and which forms apply.

Frequently asked questions