Probate in Ontario
Probate validates a Will and formally appoints an Estate Trustee to administer an estate. We guide families and executors through every stage of the application—accurately, efficiently, and with complete transparency.
What Is Probate in Ontario?
Probate is the legal process by which a Will is validated by the court and an Estate Trustee (also known as an executor) is formally appointed with the authority to administer the deceased person's estate. In Ontario, the process is formally known as applying for a Certificate of Appointment of Estate Trustee, issued by the Ontario Superior Court of Justice.
The Certificate of Appointment serves as proof to banks, financial institutions, the Land Registry Office, and other third parties that the Estate Trustee has the legal authority to manage and distribute the deceased's assets. Once issued, it confirms the validity and terms of the Will and that the named Estate Trustee has been duly appointed.
The process also involves the payment of Ontario's Estate Administration Tax—a provincial fee calculated based on the total value of the estate. This tax is paid as a deposit at the time the application is filed and becomes payable once the certificate is issued.
At Diamond and Diamond, we assist clients with applications for Certificates of Appointment—both with and without a Will—before the Ontario Superior Court of Justice. Our team ensures that applications are accurate, complete, and efficiently processed while providing practical guidance to Estate Trustees throughout the administration process.
Need to apply for probate? The initial conversation is completely free.
Call NowWhen Is Probate Necessary?
Not every estate requires probate. Whether a Certificate of Appointment is needed depends on the nature and value of the estate's assets.
Real Estate
If the deceased owned real property solely in their name, a Certificate of Appointment is required to transfer or sell that property.
Financial Institutions
Banks, investment firms, and insurance companies commonly require proof of the Estate Trustee's legal authority before releasing funds.
Disputes Over the Will
If there is a dispute about the validity of the Will or who should serve as Estate Trustee, probate provides a formal mechanism to resolve those issues.
Persons Under Disability
If any beneficiaries are minors or persons who lack capacity, probate is typically required to protect their interests and ensure proper oversight.
Certificate of Appointment: With or Without a Will
With a Will
When the deceased left a valid Will that names an Estate Trustee, the named person applies for a Certificate of Appointment of Estate Trustee With a Will. The application must include the original Will, a sworn affidavit, details about the estate's value and beneficiaries, and payment of the Estate Administration Tax.
The court reviews the documents to confirm the Will's validity. Once satisfied, the court issues the Certificate, which serves as proof of the Estate Trustee's authority to manage and distribute the estate.
If someone believes the Will is invalid—for example, due to concerns about the deceased's capacity, undue influence, or improper execution—they may file a Notice of Objection before the Certificate is issued.
Without a Will (Intestacy)
When someone dies without a Will (known as dying "intestate"), there is no named Estate Trustee. A family member or other eligible person must apply for a Certificate of Appointment of Estate Trustee Without a Will.
Ontario law establishes a priority of who may apply: the deceased's spouse or common-law partner has the first right, followed by adult children, parents, siblings, and other close relatives. If a person lower on the priority list wishes to apply, they must obtain consent from those with higher-priority interests.
Because there is no Will, the estate will be distributed according to Ontario's intestacy rules under the Succession Law Reform Act. An estate administration bond may also be required.
How the Probate Process Works in Ontario
Applying for a Certificate of Appointment involves several carefully sequenced steps. Having a lawyer ensures accuracy and helps avoid costly delays.
Gathering Documents and Information
Assemble all necessary documents: the original Will (if one exists), the death certificate, and a full inventory of the deceased's assets and their values as of the date of death. Identify all beneficiaries and determine whether any are minors or persons who lack capacity.
Preparing the Application
The Estate Trustee (or their lawyer) prepares the formal application using prescribed court forms under the Ontario Rules of Civil Procedure—including the Application for a Certificate of Appointment (Form 74A), a supporting affidavit, and a draft of the Certificate itself.
Serving Notice on Beneficiaries
Before filing with the court, the Estate Trustee must serve a copy of the application on all persons entitled to share in the estate. This gives interested parties the opportunity to review the application and raise objections. Proof of service must be filed with the court.
Paying the Estate Administration Tax
The Estate Administration Tax is paid at the time the application is filed. It is calculated based on the total value of the estate and payable to the Minister of Finance. Accepted methods include certified cheque, money order, bank draft, and lawyers' trust account cheques.
Court Review and Issuance
The court reviews the application to ensure all requirements are met. If everything is in order and no objections have been filed, the court issues the Certificate of Appointment. Processing times vary—some courts take a few weeks, while busier locations may take several months.
Filing the Estate Information Return
Within 90 calendar days of the Certificate being issued, the Estate Trustee must file an Estate Information Return with the Ontario Ministry of Finance. Failure to file, or filing inaccurate information, can result in penalties including fines of at least $1,000.
Ontario's Estate Administration Tax
Ontario's Estate Administration Tax is governed by the Estate Administration Tax Act, 1998. It is calculated based on the total fair market value of all assets owned by the deceased at the time of death. Assets that pass outside the estate—such as jointly held property, life insurance with a named beneficiary, or registered accounts with designated beneficiaries—are generally not subject to the tax.
Current Tax Rates
The Estate Administration Tax applies to estates for which a Certificate of Appointment or Small Estate Certificate is issued.
| Estate Value | Tax Rate |
|---|---|
| First $50,000 | No tax |
| Amount exceeding $50,000 | $15 per $1,000 (1.5%) |
Example: For an estate valued at $500,000, the tax applies to $450,000 (the amount exceeding $50,000) at $15 per $1,000, resulting in a tax of $6,750. The estate value is rounded up to the nearest thousand.
Responsibilities of the Estate Trustee
Receiving the Certificate of Appointment is only the beginning. The Estate Trustee takes on significant legal obligations that continue until the estate is fully administered.
Identifying and Securing Assets
Locate all of the deceased's assets—bank accounts, investments, real estate, vehicles, personal property—and take steps to protect them until they can be properly distributed.
Paying Debts and Taxes
All legitimate debts must be paid from the estate, including outstanding bills, loans, and credit card balances. The Estate Trustee must also file the deceased's final income tax return and any trust returns required by the CRA.
Distributing Assets to Beneficiaries
Once debts and taxes are settled, the Estate Trustee distributes remaining assets according to the Will—or, if there is no Will, according to Ontario's intestacy rules. The trustee must obtain releases from beneficiaries or pass their accounts.
Additional Obligations
- Keeping the deceased's money in a separate account—never commingling estate funds with personal funds
- Maintaining detailed records of every transaction involving estate assets
- Notifying creditors and dealing with any claims against the estate
- Filing the Estate Information Return with the Ministry of Finance within 90 days
- Administering the estate in a timely manner—unreasonable delays can expose the trustee to personal liability
Small Estates Under $150,000
Ontario provides a streamlined process for estates valued at $150,000 or less. Instead of a full Certificate of Appointment, the Estate Trustee may apply for a Small Estate Certificate, which involves fewer documents and simplified court procedures.
The Estate Administration Tax still applies using the same calculation method. However, the reduced paperwork makes this an efficient option for straightforward, lower-value estates.
Some financial institutions may also release smaller amounts—often up to $10,000 to $15,000—without requiring any court certificate, provided the Estate Trustee signs an indemnity agreement.
Assets That May Bypass Probate
Not all assets form part of the probatable estate. Understanding which assets pass outside of probate can help families plan ahead and reduce the Estate Administration Tax.
Joint Property
Assets held in joint tenancy with a right of survivorship—such as a jointly owned home or bank account—pass directly to the surviving joint owner, outside of the estate.
Designated Beneficiaries
Life insurance policies, RRSPs, RRIFs, and TFSAs with a named beneficiary (other than the estate) are paid directly to that person and are generally not included in the probatable estate.
Assets Held in Trust
Property transferred into a trust (such as an inter vivos or "living" trust) during the deceased's lifetime is not part of the estate and does not pass through probate.
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Speak to a LawyerProbate FAQs
Common questions about the probate process in Ontario.
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