Who Must Be Notified When Applying for Probate in Ontario

Before an Ontario court issues a certificate of appointment, the people with an interest in the estate generally have to be told about the application. Missing someone can hold up the process or invite a dispute later.

This article explains who must receive notice, how the rules change for children and people who cannot manage their own affairs, and what happens when there is no will. Every estate is different, so a lawyer can confirm who needs to be served in yours.

The general rule: every beneficiary

Under Rule 74.04(2), the application must be served on every beneficiary, including charities and contingent beneficiaries. A contingent beneficiary is someone who receives a gift only if something else happens, such as another person dying first.

Ontario guidance says this must be done before filing with the court, by email or by mail or courier to each person's last known contact details. The filing usually includes an affidavit of service (Form 74B) or a lawyer's certificate of service (Form 74B.1).

The application is filed in the county or district where the deceased had a fixed place of abode. If the deceased had no fixed place of abode in Ontario, it is filed where the property is located.

Special rules for people who cannot receive notice themselves

When the Children's Lawyer or the Public Guardian and Trustee is served and there is a will, a statement of the estimated value of the person's interest must be included.

The Office of the Children's Lawyer may also follow up later on how an estate trustee manages a child's interest and request accounts. If the court grants the request, the estate trustee must bring an application to pass accounts.

When there is no will

Without a will, Rule 74.04(1) requires consents on Form 74G from beneficiaries who together hold a majority interest in the value of the estate's assets at the date of death. A spouse or common-law partner generally has the first right to apply, followed by close adult relatives, and the court may appoint whichever relative it considers most appropriate.

There is a special case where the person died without a will and has no adult next of kin in Ontario. Under the Crown Administration of Estates Act, s. 3, the local registrar must notify the Public Guardian and Trustee before letters of administration are issued to anyone else. The PGT may apply for a grant within 30 days of notice, and letters may issue sooner if the PGT consents.

Note that a common-law partner does not inherit under the Succession Law Reform Act when there is no will, although a common-law partner may still be granted administration. Who counts as a beneficiary therefore depends on the rules for the type of estate, so confirm it before you serve anyone.

A person granted administration generally has to give a bond, and a bond is also required if the applicant was not named as estate trustee. There are exceptions, including for a surviving spouse in some intestate estates and for some small estates.

Other people who may want notice

A person with a financial interest may file a request for notice (Form 74P) at any time before a certificate is issued. It expires three years after filing and can be renewed. If you are the applicant, check the court file for any such request before you file. If you are unsure whether a request has been filed or what it involves, it is worth confirming with a lawyer.

Other people may also have claims that affect the estate. A surviving married spouse has an election to make within six months of the death, and a dependant may apply for support from the estate. How these claims relate to who should be told depends on your situation, so it is worth confirming with a lawyer.

What to do next

• List every beneficiary named in the will, including charities and alternates.
• Note anyone who is a minor, incapable, or not yet born or identifiable.
• Gather the last known email and mailing address for each person.
• Serve everyone before filing, and keep proof of service for Form 74B or 74B.1.
• File the application with the Superior Court of Justice, where original wills and bonds must still go on paper.

The application and affidavits must be signed before a Commissioner for taking affidavits, who must also sign them. Applications are typically processed within 15 business days, and the registrar may ask for more information. A lawyer can help if you are unsure whether someone has been missed.

Frequently asked questions