What Is Probate in Ontario? A Plain-Language Explanation

Soon after a death, someone usually mentions probate. It sounds like a big legal event, but the idea is simple: it is how the court confirms who is in charge of the estate.

This article explains what probate is, what the court does, and what the certificate you receive is for. It covers the general approach in Ontario, and a lawyer can confirm how it applies to a specific estate.

Probate in plain words

Probate is a court process in which the Superior Court of Justice confirms the person who will deal with the estate. That person is called the estate trustee, and is often the executor named in a will. When there is no will, the court may grant administration to a person such as the spouse, common-law partner or next of kin.

A person named in a will does not have to act as estate trustee. An executor who renounces probate loses all rights as executor, and the estate then passes as though that person had never been named. A renunciation is made on Form 74G (Part A).

What the court actually does

The court does not run the estate and does not decide how you feel the estate should be split. It reviews the application and the supporting documents, and if satisfied, issues a certificate. The registrar may ask for further information and must refer applications that raise issues to a judge.

• It checks that the application is complete, including forms, the original will, proof of death and any needed consents or renunciations.
• It looks at whether the right people have been given notice, including every beneficiary.
• It may require a bond, where one applies.
• It collects Estate Administration Tax, paid as a deposit when the application is filed.

What is a Certificate of Appointment of Estate Trustee?

The certificate is the document the court issues to show that a named person has authority to act for the estate. Banks, land registry offices and other institutions often ask to see it before dealing with the estate trustee. An approved certificate is issued electronically and sent by email unless a paper certificate was requested.

Authority does not start only when the certificate arrives. 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. The certificate is what proves that authority to others. For land, the Land Titles Act generally requires the estate trustee to obtain a certificate of appointment before dealing with land after an owner dies.

When probate is needed, and when it is not

If the deceased owned real property or assets held by a financial institution, the estate normally has to be probated, and you should check whether the institution requires a certificate of appointment or a small estate certificate. Estates of $150,000 or less can apply for a Small Estate Certificate.

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

Costs, filing and what to do next

No Estate Administration Tax is payable if the estate is worth $50,000 or less. Above that, the tax is $15 for each $1,000 or part of $1,000 by which the value exceeds $50,000, for applications on or after January 1, 2020. The estate pays the tax, not the estate representative personally. An Estate Information Return must be filed with the Ministry of Finance within 180 calendar days after the certificate is issued, even if no tax is payable.

You file in the county or district where the deceased had a fixed place of abode, or where the property is located if there was none in Ontario. Practical steps:

• Find the original will and any codicils.
• List the assets and note which are held jointly or have a named beneficiary.
• Ask each institution what document it needs.
• Speak with a lawyer about who should apply and whether a bond is needed.

Frequently asked questions