Who Must Be Served With a Probate Application in Ontario?

Before you ask the court for a certificate of appointment, other people with an interest in the estate are entitled to know about it. If you are the estate trustee, that means giving notice to the right people in the right way, and getting it done before you file.

The rules are straightforward for an adult family with a simple will. They get more detailed when a beneficiary is a child, cannot manage their own affairs, or may not yet exist. This guide walks through who must be served, how, and what to do if the court says something is missing.

The basic rule: every beneficiary gets notice

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 happens, for example if the first person named has died. Read the will closely for these people, because they are easy to overlook.

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

• Named individuals who receive a gift or a share of the residue.
• Charities and other organizations named in the will.
• Contingent or alternate beneficiaries, who take if someone else cannot.

Special cases that need extra steps

Some beneficiaries cannot simply be handed notice themselves. The rules name who else must be served.

When the Children's Lawyer or the Public Guardian and Trustee is served and there is a will, the notice must include a statement of the estimated value of that person's interest. Work out that figure before you serve, so you are not delayed later.

When there is no will and no adult next of kin in Ontario

If the person died without a will and has no adult next of kin in Ontario, a different step applies. 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 that notice, and letters may issue sooner if it consents. If this fits your situation, expect some added waiting time and consider getting legal advice on how it affects your application.

Proving service and filing the application

Proof of service is part of the filing package. The checklist includes the Form 74A application, and either a Form 74B affidavit of service or a Form 74B.1 lawyer's certificate of service. It also includes the Form 74C draft certificate, the original will and codicils, proof of death, any renunciations and consents on Form 74G, and a bond on Form 74L or 74M where required.

The application and affidavits must be signed before a Commissioner for taking affidavits, who must also sign them. Applications may be filed with the Superior Court of Justice by email, but original wills, codicils, administration bonds and certified copies must still be filed on paper.

File in the county or district where the deceased had a fixed place of abode. If there was none in Ontario, file where the property is located.

If the court sends a requisition or a Form 74O

Applications are typically processed within 15 business days. The registrar may ask for further information, and must refer applications that raise issues to a judge. If an application is refused, you receive a Registrar's Notice on Form 74O stating the reason, and missing documents can be supplied when court staff ask for them.

How to deal with a service problem depends on the reason the court gives and on your situation, so it is worth confirming the next step with a lawyer. A lawyer can also help if the reason is unclear or the beneficiaries are hard to find.

• List every beneficiary from the will, including charities and contingent beneficiaries.
• Identify any minors, incapable adults or possible unborn beneficiaries.
• Prepare the value statement if the Children's Lawyer or Public Guardian and Trustee is served.
• Serve everyone before filing, using their last known contact details.
• Complete Form 74B or 74B.1 as proof of service.
• Sign before a Commissioner for taking affidavits.
• Answer any requisition promptly.

Frequently asked questions