When Probate Is Not Required in Ontario: Common Situations

Many people assume every death leads to a probate application. In Ontario, that is not always true. Some property passes to someone else automatically, and other estates can use a shorter process.

This page walks through the common situations where a full certificate may not be needed, along with the limits. The answer turns on how each asset was owned, so confirm your own facts before skipping a step.

Start with how each asset was owned

Probate is usually about assets that sat in the deceased's name alone. 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.

So the useful exercise is to list each asset and ask who the law treats as its owner now. Some will pass outside the estate, and some will not.

Assets that often pass outside the estate

• Joint assets that automatically become the property of the other owner or owners on death are not included in the estate value for the tax.
• Registered Pension Plans, RRSPs, RRIFs and TFSAs with a beneficiary designation or declaration are not included. Without one, they are included.
• Real estate located outside Ontario is not counted in the estate value for Ontario Estate Administration Tax. How this applies to your situation depends on the facts, so it is worth confirming with a lawyer.
• A surviving joint tenant of land takes the property by survivorship through a survivorship application under Land Titles Act s. 123, and no estate certificate is needed.

Watch the exceptions. When a parent puts money in a joint account with an adult child without payment, the law presumes the child holds it in trust for the parent's estate, unless evidence shows the parent intended the child to have the right of survivorship. For transfers to a minor child, the starting point is instead that the transfer is a gift. Joint accounts with an adult child can therefore end up in the estate, so they deserve a closer look.

Small estates: a simpler certificate, not no certificate

Since April 1, 2021, an estate valued at $150,000 or less can use the simplified Small Estate Certificate process, using Forms 74.1A, 74.1B and 74.1C, plus an affidavit as needed. The application must be sent to beneficiaries or their legal representatives 30 days before filing, and applications are usually processed within five business days.

Estates over $50,000 and up to $150,000 still pay Estate Administration Tax when the application is filed. Estates over the $150,000 limit must apply for a Certificate of Appointment of Estate Trustee instead.

Land and the low-value exceptions

Land registry practice has a few narrow exceptions. A transmission can be registered without a certificate if the applicant states that none was applied for because the total estate value is not more than $50,000, and a covenant to indemnify the Land Titles Assurance Fund must also be filed. For the first dealing after a property was converted from the Registry system to Land Titles, the land registrar may waive the certificate, subject to a supporting affidavit and the same type of covenant.

These are technical routes tied to older bulletins, so confirm current land registry practice with a lawyer before relying on them. Do not confuse the $50,000 figure with the $150,000 Small Estate Certificate limit.

Banks and other institutions set their own policies about when they release funds without a certificate. Those policies vary, so ask each institution what it requires rather than assuming.

What to do next

• List every asset and note whether it was in the deceased's name alone, jointly held, or payable to a named beneficiary.
• Ask each bank or plan administrator what documents it will accept.
• Check whether any joint account with an adult child could be treated as part of the estate.
• Estimate the total estate value to see which process applies.
• Speak with a lawyer if land, a possible dispute, or a minor or incapable beneficiary is involved. A bond may be needed in some cases involving minor or incapable beneficiaries.

Frequently asked questions