Why Is Probate Needed When There Is a Will in Ontario?

Many people named as executor are surprised to learn that a signed will does not, on its own, let them close accounts or sell a house. The will tells everyone what the deceased wanted. Probate is the court step that confirms the will is the valid one and that you are the person with authority to act.

This article explains why institutions ask for that confirmation, where it is not needed, and what to expect when you apply.

What probate actually does

In Ontario, the court issues a Certificate of Appointment of Estate Trustee with a will. Think of it as the court's stamp that this is the last will and that you are the one authorized to deal with the estate. Banks, land registry offices and others cannot easily check these things themselves, so they rely on the certificate.

Ontario guidance says that if the deceased owned real property or assets held by a financial institution, the estate normally has to be probated. It advises checking whether the institution requires a certificate of appointment or a small estate certificate. Requirements can differ from one institution to another, so ask each one what it wants.

Where probate is not needed

Probate is not always required. Assets held jointly, or with a designated beneficiary such as an insurance policy or a joint bank account, pass according to how they are owned or designated.

Estates of $150,000 or less can apply for a Small Estate Certificate. The $150,000 amount is the prescribed small-estate figure under the Estates Act.

Land and your authority before probate

Before a certificate is issued, the deceased's property vests in the personal representative, who holds it as trustee for the people entitled, subject to the payment of debts. That does not mean every third party will deal with you. For land, the Land Titles Act generally requires the estate trustee to obtain a certificate of appointment before dealing with land after an owner dies.

There is a narrow exception. Where there is a will, the certificate may be waived if the property was converted by the Ministry from the registry system to land titles and this is the first dealing since conversion. The affidavit must set out the estate's value and state that no certificate was applied for, and a covenant to indemnify the Land Titles Assurance Fund is still required.

A sale of real property for distribution only is not valid without the beneficiaries' concurrence, or approval from the Children's Lawyer or the Public Guardian and Trustee. Real property that the personal representative has not dealt with within three years of death vests in the beneficiaries without a conveyance, unless a caution is registered in the prescribed form.

What applying involves

• A Form 74A application, proof of service on beneficiaries, a draft certificate on Form 74C and proof of death.
• The original will and codicils, plus Form 74D, 74E or 74F where needed, and a bond on Form 74L or 74M where required.
• Signatures before a Commissioner for taking affidavits.
• Estate Administration Tax: none if the estate is $50,000 or less, and above that $15 for each $1,000 or part of $1,000 over $50,000.

The tax is paid as a deposit when the application is filed. The estate pays it, not you personally. After the certificate issues, an Estate Information Return must be filed with the Ministry of Finance within 180 calendar days, even if no tax is payable.

Applications are typically processed within 15 business days. If one is refused, the registrar sends a Registrar's Notice on Form 74O stating the reason. An approved certificate is issued electronically and emailed unless a paper certificate was requested.

What to do next

• List every asset and note how it is held: in the deceased's name alone, jointly, or with a named beneficiary.
• Ask each bank or institution what it requires from an estate trustee.
• Do not sell or transfer land until you know what the land registry will need.
• Decide whether you want to act as executor at all, since a named person does not have to act.
• Get advice if there are co-executors, a minor beneficiary or any family dispute.

Frequently asked questions