Who Must Be Given Notice of a Probate Application in Ontario?

Before an estate trustee files for a certificate of appointment, other people usually have to be told about it. Missing someone on that list is one of the more common reasons an application comes back from the court.

This guide explains who must be served in Ontario, what changes when a beneficiary is a child or cannot manage their own affairs, how you prove service, and what to do if the court asks for more.

The general rule: every beneficiary

Rule 74.04(2) requires the application to be served on every beneficiary, including charities and contingent beneficiaries. A contingent beneficiary is someone who receives a gift only if something else happens, for example if the first person named has died.

Ontario guidance says service must be done before filing with the court. It can be made by email, or by mail or courier, to each person's last known contact details.

• Named individuals who receive gifts under the will
• Charities named in the will
• Contingent beneficiaries who may take if another gift fails

Special cases that add people to the list

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. Work out that value before you serve, so your documents are complete the first time.

No will and no adult next of kin in Ontario

If the person died without a will and there is no adult next of kin in Ontario, the local registrar must notify the Public Guardian and Trustee before letters of administration are issued to anyone else. The Public Guardian and Trustee may apply for a grant within 30 days of notice, and letters may issue sooner if it consents.

This step applies only where there is no will and no adult next of kin in Ontario. Whether it applies to your estate depends on the facts, and a lawyer can confirm.

Where there is no will, a spouse or common-law partner generally has the first right to apply, followed by close adult relatives such as a child, parent, grandchild, sibling, nephew or niece, and the court may appoint whichever relative it considers most appropriate. Rule 74.04(1) also 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. Consent is a different step from being served, so it helps to keep the two lists separate.

Proving that service happened

The filing documents include proof of service: a Form 74B affidavit of service, or a Form 74B.1 lawyer's certificate of service. The application and affidavits must be signed before a Commissioner for taking affidavits, who must also sign them.

Keep a simple record of who was served, when, how, and at what address or email. Applications may be filed with the Superior Court of Justice by email, although original wills, codicils and bonds must still be filed on paper.

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. An approved certificate is issued electronically and sent by email unless a paper certificate was requested.

Ontario's probate checklist lists the other items that usually go in with proof of service:

• Form 74A application and Form 74C draft certificate
• The original will and any codicils
• Form 74D, 74E or 74F, as needed for the type of will
• Proof of death
• Renunciations and consents on Form 74G
• A bond on Form 74L or 74M, where one is required

If the court raises a problem, and request for notice

Applications are typically processed within 15 business days, and the registrar may ask for further information. A refused application receives a Registrar's Notice (Form 74O) stating the reason, and missing documents can be supplied when court staff ask for them. If service was incomplete, serve the missing person, then supply the proof the court asked for.

People with a financial interest in the estate can protect themselves too. They may file a request for notice (Form 74P) at any time before a certificate is issued, and it expires three years after filing and can be renewed.

• List every beneficiary, including charities and contingent beneficiaries
• Check for minors, unborn or unascertained beneficiaries and incapable adults
• If the Children's Lawyer or Public Guardian and Trustee is served and there is a will, include a statement of the estimated value of the person's interest
• Serve everyone before filing and keep records
• Include Form 74B or 74B.1 in your filing documents
• Reply promptly to any requisition or Form 74O

Frequently asked questions