Who Applies for Probate in Ontario? Do Beneficiaries Have To?

If someone has left you something in their will, you may worry that you are the one who has to go to court. For most beneficiaries, that is not the case. The job of applying usually belongs to someone else.

This article explains who normally applies for probate in Ontario, what the beneficiary's part in the process is, and which rights you have if something looks wrong.

The short answer: the estate trustee applies

Probate is the court procedure that gives someone authority to act as estate trustee, confirms the authority of a trustee named in a will, or approves a will as valid. In Ontario, the document the court issues is called a Certificate of Appointment of Estate Trustee.

If there is a will, the estate trustee named in it usually applies. If you are named in the will only as a beneficiary and not as the estate trustee, the application is usually someone else's to make, although you may receive the signed application before it is filed.

Probate is also not needed in every estate. 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.

When a beneficiary might become the applicant

Some beneficiaries are also the estate trustee. Many people name a spouse or a child as both. In that case you apply because of that role, not because you are a beneficiary.

If the estate trustee named in the will declines or cannot act, the beneficiaries may nominate another person. 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.

Taking on the role is a real commitment. After the certificate is issued, estate trustees wind up the deceased's affairs, pay taxes, bills and other debts, collect the assets, and distribute the residue to those entitled to it.

What a beneficiary's role and rights are

Your main role is to receive information and, if you wish, to respond to it. These points are the ones that matter most:

• Before filing, the applicant must send the signed application to the estate beneficiaries.
• If a beneficiary is a minor or an incapable adult, 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 files 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.

Receiving the application is not the same as agreeing to everything in it. Read it, ask questions, and speak to a lawyer promptly if something does not match what you expected.

Money, fees and personal liability

The Estate Administration Tax is paid as a deposit when the application is filed, and it becomes the tax once the certificate is issued. The estate pays it, not the estate representative personally. That means the cost comes out of the estate before beneficiaries receive their share.

An estate trustee is entitled to a fair and reasonable allowance for their care, pains, trouble and time, as a judge of the Superior Court of Justice allows, and the allowance can be fixed when the accounts are passed. This does not apply where the will itself fixes the trustee's allowance.

Taxes matter to beneficiaries too. The legal representative should get a CRA clearance certificate before distributing the estate, and a representative who distributes first is personally liable for any tax debt, up to the value of the assets distributed. If you are a beneficiary, it is reasonable to ask whether this step is planned before money is paid out.

What to do next

• Find out who the estate trustee is and whether they have applied or plan to.
• Keep the application and any covering letter you receive.
• Note the date you received it and any questions you have.
• Ask whether the estate needs probate at all, since it depends on the assets.
• If you think you need to object, or a beneficiary is a minor or incapable, get legal advice before the application is filed.

Every estate is different. A lawyer can look at the will and the assets and tell you where you stand.

Frequently asked questions