Probate Fees in Ontario

What is an estate?
A person’s estate is the collection of their possessions, real estate, bank accounts, and other assets and liabilities that they may leave behind upon passing.

What is probate in Ontario?
Probate is a legal process where the court formally validates the deceased’s Last Will and confirms the executor’s authority as the estate trustee to distribute the deceased’s assets, such as real estate, bank accounts, and financial investments. If there is no Will, then by way of probate, the court appoints an estate trustee to distribute the deceased’s assets to the beneficiaries or legal heirs.

Is the principal residence subject to probate in Ontario?
Yes, probate fees are applicable to a principal residence in Ontario if it is solely owned by the deceased or held as a tenant in common. However, if the property is owned in joint tenancy with a right of survivorship, it bypasses probate and is not subject to these fees.

Who pays probate fees in Ontario?

Probate fees in Ontario are paid from the assets of the deceased’s estate. The executor of the estate typically uses estate funds, such as money from bank accounts, to cover these costs. These fees are not the responsibility of the personal representatives, executors, or beneficiaries directly, but are instead deducted from the estate before distribution.

Estate Assets—What Must Be Included?
The deceased’s estate that is subject to probate includes all owned assets:

• All real estate in Ontario, minus any encumbrances such as mortgages or liens. Real estate owned in “joint tenancy” with rights of survivorship is excluded. In “tenants in common” arrangements, only the deceased’s proportionate value is included.
• Personal property, including:
  • Investments, excluding those with named beneficiaries (e.g., pensions, TFSAs, RRSPs, RRIFs).
  • Bank accounts, unless held jointly.
  • All vehicles, including recreational ones.
  • Collections such as coins, cards, etc.
  • Furniture.
• No deductions are made for debts not secured by real estate in Ontario, including credit card debt, student loans, car loans, and personal loans, unless they are secured against Ontario real estate.

Exclusions
For EAT purposes, the following assets do not need to be declared on an EAT return:

• Real estate located outside Ontario.
• Real estate subject to “joint tenancy with a right to survivorship.”
• Life insurance passed to a named individual.
• Jointly held bank accounts.

Paying the EAT
Payment is typically made via a certified cheque or money order in the name of the “Minister of Finance.” Personal checks are not accepted. In cases where EAT amounts are significant, and there are insufficient liquid assets, funds may need to be sourced from the deceased’s other assets. Estate representatives may arrange for advances or loans, or request deferrals under specific conditions with the help of an estate lawyer.

Filing the Estate Administration Tax Return
Starting January 1, 2020, the estate representative must file an Estate Information Return within 180 days of receiving the Certificate of Appointment of Estate Trustee. This deadline extends to the next business day if it falls on a weekend or holiday.

Exemptions from Filing
An Estate Information Return is not required if any of the following certificates are issued:

• Certificate of Appointment of Succeeding Estate Trustee with a Will.
• Certificate of Appointment of Succeeding Estate Trustee with a Will Limited to the Assets Referred to in the Will.
• Certificate of Appointment of Succeeding Estate Trustee without a Will.
• Certificate of Appointment of Estate Trustee During Litigation.

How to File the Return
The return can be filed online, by mail, or in person at the Ministry of Finance, Compliance Branch, 33 King Street West, PO Box 625, Oshawa, ON, L1H 8H9, or by fax to 1-866-888-3850. It is crucial that each estate representative signs the return, attesting to the accuracy and completeness of the information provided.

Updates, Estimates, and Refunds
Estimates are used when asset values are not precisely known at the time of probate. The estate trustee must update the EAT application and pay any additional EAT as soon as the asset values are firmly established. Overpayments of EAT are difficult to recover, emphasizing the importance of accurate initial assessments.