Searching for a Will or Probate Record in Ontario

Sometimes nobody can find a will after a death. Other times you simply want to know whether someone has already applied for probate. Both questions are common, and there are set places to look.

This article walks through where to search for a will, how court records fit in, and what you can do to protect your interest while you look.

Where to look for a will

Ontario guidance suggests checking the deceased's home, safety deposit box, lawyer's office, private will registries and court records. Start with the home, since papers are often kept with insurance policies, tax records or in a filing cabinet.

• The deceased's home.
• A safety deposit box at the bank.
• The lawyer who may have prepared the will.
• Private will registries.
• Court records.

Each registrar's office in Ontario is a depository for the wills of living persons. Wills can therefore be deposited at a court office for safekeeping, and the fee for depositing one is $28.

Do not overlook informal documents

A will does not have to look formal. A will made wholly in the testator's own handwriting and signed by the testator is valid without any witness. A handwritten document in a drawer may therefore matter.

A formal will must be signed at its end by the testator, or by someone else in the testator's presence and at the testator's direction, and the signature must be made or acknowledged in front of two or more witnesses present at the same time, who then sign in the testator's presence. A signature that is not at the very end can still be valid if its position makes it apparent on the face of the will that the testator intended it to give effect to the will. If a document was not properly executed, the Superior Court of Justice may order it valid if it is satisfied the document sets out the deceased's testamentary intentions. This applies to deaths on or after January 1, 2022, and does not validate electronic wills.

If someone holds a testamentary document and will not hand it over, the court may order that person to produce it.

Searching court records for a probate file

Court records are searched at the courthouse closest to where the deceased lived, or where they owned Ontario property if they lived elsewhere. Viewing a court file requires a fee. Estate court files started before 1977 are held by the Archives of Ontario.

What a file tells you depends on how far the matter has gone, so it is worth asking the court office what it can show you. If an application is pending, the registrar may still be waiting on documents or may have refused it with a Registrar's Notice on Form 74O stating the reason. If you want to see a file, call the court office first and ask what you need to bring.

A probate application generally includes the original will and any codicils, proof of death, and any renunciations and consents on Form 74G. Applications are typically processed within 15 business days.

Protecting your interest while you search

A person with a financial interest in the estate may file a request for notice on Form 74P at any time before a certificate is issued. It expires three years after filing and can be renewed. Whether this step suits your situation is worth confirming with a lawyer.

The application must be served on every beneficiary, including charities and contingent beneficiaries, before it is filed with the court. If you believe you are a beneficiary and have not been told, raise it. A person with a financial interest can also ask the court to require an estate trustee to pass accounts. Court fees change from time to time, so confirm them with the court office.

Some time limits matter while you search. A surviving married spouse must file an election with the Estate Registrar for Ontario within six months of the death, and if none is filed the spouse is deemed to have elected to take under the will or intestacy. A dependant who was not adequately provided for may ask the court for support, and the application generally must be made within six months of the grant of the certificate.

What to do next

If no will turns up, 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. A common-law partner does not inherit under the Succession Law Reform Act when there is no will, although Estates Act s. 29 still allows a common-law partner to be granted administration. How this applies depends on your situation, so it is worth confirming with a lawyer.

• Search the home and ask relatives, friends and business contacts who might hold a copy.
• Contact the deceased's lawyer, bank and any private will registry.
• Contact the court office nearest where the deceased lived to ask about records.
• Consider a request for notice on Form 74P if you have a financial interest.
• If no will turns up, treat the estate as having no will and read about the intestacy rules.
• Speak with a lawyer if you suspect a will is being withheld or the family disagrees.

Frequently asked questions