Administering an estate after someone dies can involve court filings, asset valuations, beneficiary notices, tax obligations and important responsibilities for the estate trustee.
This comprehensive guide explains when probate may be required in Ontario, who may apply, the documents involved, the court process, expected timelines, applicable costs and the responsibilities that arise after a probate certificate is issued.
Whether you are named as executor in a Will or are considering applying where there is no Will, this guide will help you understand the process and identify the next steps.
Probate is the term commonly used for the court process of obtaining a Certificate of Appointment of Estate Trustee from the Ontario Superior Court of Justice.
Where the deceased left a valid Will, the court reviews the application and may issue a Certificate of Appointment of Estate Trustee With a Will. The certificate confirms the estate trustee’s legal authority to act under the Will.
Where there is no valid Will, the court may appoint an eligible person as the Estate Trustee Without a Will. The estate must then be administered and distributed in accordance with Ontario’s intestacy laws.
The certificate provides proof of the estate trustee’s authority to collect and manage estate assets, deal with financial institutions and complete transactions requiring court-confirmed authority.
Probate is only one part of estate administration. It does not, by itself, pay the deceased’s debts or taxes, distribute assets to beneficiaries or complete the administration of the estate.
Probate is commonly required when an estate trustee must provide court-confirmed authority to collect, transfer, or sell estate assets. Whether probate is necessary depends primarily on the type of assets, how they were owned, and the requirements of the organizations holding them.
Probate may be required where:
Having a Will does not automatically avoid probate. Similarly, the value of the estate alone does not determine whether probate is required.
Probate may not be required where:
Each financial institution and asset holder may apply its own requirements. The proposed estate trustee should confirm those requirements before commencing a probate application.
Assets owned solely by the deceased and payable to their estate commonly require probate. Whether a particular asset requires a probate certificate depends on its legal ownership, any beneficiary designation, and the requirements of the organization holding the asset.
These may include:
Probate may not be required for:
The name appearing on an account or property title does not always determine beneficial ownership. Each asset should be reviewed carefully before deciding whether it forms part of the probate estate.
Most straightforward probate matters fall into one of three categories. The correct application depends on whether the deceased left a valid Will and the value of the estate.
Probate With a Will
Where the deceased left a valid Will, the person named as estate trustee may apply for a Certificate of Appointment of Estate Trustee With a Will.
The certificate confirms the applicant’s authority to administer the estate in accordance with the Will. The original Will and any codicils must generally be submitted with the required application materials.
Probate Without a Will
Where the deceased did not leave a valid Will, an eligible person may apply for a Certificate of Appointment of Estate Trustee Without a Will.
There is no automatically appointed executor. A surviving spouse or the deceased’s closest next of kin will generally have priority to apply, subject to Ontario law and the court’s approval. The estate must be distributed according to Ontario’s intestacy rules.
Consents, renunciations, or an estate administration bond may be required depending on the circumstances.
Small Estate Certificate Application
An estate valued at $150,000 or less may qualify for Ontario’s optional simplified Small Estate Certificate process. The procedure may be used for qualifying estates with or without a Will.
A Small Estate Certificate authorizes the estate trustee to manage only the assets identified in the certificate. If additional assets are discovered, an amended certificate or a regular probate application may be required.
Specialized applications may be necessary where there are multiple Wills, a missing original Will, a foreign probate certificate, no available estate trustee, or other unusual circumstances.
The probate process in Ontario generally involves the following steps:
After receiving the certificate, the estate trustee may collect estate assets, pay valid debts and taxes, maintain estate accounts, and distribute the remaining estate to the beneficiaries or persons legally entitled to receive it.
A notice to creditors may be advisable in some estates, but publishing a newspaper notice is not a mandatory step in every probate application.
The person entitled to apply depends on whether the deceased left a valid Will and who is legally entitled to seek appointment. Being a family member or having acted under a Power of Attorney does not, by itself, authorize someone to administer the estate.
The person named as estate trustee in the Will will usually apply for a Certificate of Appointment of Estate Trustee With a Will.
If the named estate trustee has died, is unable to act, or renounces the appointment, an alternate estate trustee named in the Will may apply. Where no named or alternate estate trustee is available, the beneficiaries may nominate another suitable person, subject to the court’s approval.
When a person dies without a valid Will, there is no automatically appointed executor. The Ontario Superior Court of Justice may appoint:
The court retains discretion to determine who should be appointed. Where several people have an equal right to apply, consents or renunciations may be required. If they cannot agree, a court determination may be necessary.
Eligibility to apply as estate trustee is separate from the right to inherit from the estate. For example, a common-law partner may be eligible to seek appointment but does not automatically inherit under Ontario’s intestacy rules.
More than one person may apply jointly. Depending on the circumstances, the court may also require an estate administration bond before issuing the certificate.
The documents required for probate depend on whether there is a Will, the value of the estate, and the circumstances of the proposed estate trustee. Common requirements include:
Where there are multiple Wills, missing documents, alterations to the Will, a handwritten Will, foreign documents, or uncertainty concerning the proper applicant, additional evidence or court materials may be necessary.
If the original Will cannot be located, the Law Society of Ontario provides information about locating Wills and other legal documents.
A probate application may be delayed or refused if the required documents, information, or evidence are incomplete. An Ontario probate lawyer can review the estate and prepare the appropriate application materials.
Ontario’s published guidance states that regular probate applications are typically processed within approximately 15 business days, while Small Estate Certificate applications are usually processed within approximately five business days. These are general estimates and are not guaranteed turnaround times.
In practice, processing times vary significantly between court locations. Based on Shaikh Law Firm’s experience, routine probate applications filed in busier jurisdictions, including Toronto and Peel Region, frequently take approximately four to five months from filing to the issuance of the certificate. Processing may be shorter or longer in other jurisdictions.
An application may be further delayed by incomplete documents, court requisitions, problems with the original Will, required consents or bonds, competing applications, or matters requiring review by a judge. Court processing times are outside the lawyer’s control, and no specific issuance date can be guaranteed.
Receiving the probate certificate does not complete the administration of the estate. The estate trustee may still need to collect or sell assets, pay debts and taxes, file tax returns, resolve claims, maintain accounts, and distribute the remaining estate.
The complete administration of an estate may take several months and, in more complex cases, longer than one year.
You may be able to withdraw funds from the deceased’s account to pay immediate expenses such as funeral bills, utility bills, property tax, probate tax, probate lawyer fees, and other direct costs.
Once you have obtained a copy of the death certificate, you should arrange for a meeting with your branch manager.
Before probate is issued, a financial institution may agree to pay certain verified estate expenses directly from the deceased’s account. However, policies and documentary requirements vary, and family members do not have an automatic right to withdraw or control the deceased’s funds.
Your bank would require a copy of an invoice to prepare in the deceased’s name before issuing a bank draft. Therefore, all invoices should be in the deceased’s name with the executor’s care. Example: Deceased C/o Executor
The total cost of probate is not one single charge. Depending on the estate, it may include:
Shaikh Law Firm offers fixed legal fees for qualifying, uncontested probate applications. The applicable fee depends on whether the estate qualifies for the Small Estate Certificate process and whether the deceased left a valid Will.
$1,800
+ HST
$2,250
+ HST
$2,700
+ HST
Estate Administration Tax and applicable disbursements are additional unless expressly included in the written retainer agreement.
View our complete probate fee breakdown and use the Ontario probate tax calculator.
Once the probate certificate is issued, the estate trustee may use it to establish their authority and continue administering the estate. The estate trustee’s responsibilities generally include:
The estate trustee should notify banks, investment companies, insurers, and other organizations of the appointment. Estate accounts may be closed or transferred, and property may be secured, maintained, or sold where appropriate.
The estate trustee must generally file an Estate Information Return with the Ontario Ministry of Finance within 180 calendar days after the estate certificate is issued. The return reports the estate assets and their date-of-death values.
Valid debts, funeral expenses, legal expenses, taxes, and other estate liabilities must be identified and paid. In appropriate cases, the estate trustee may also publish or circulate a notice to creditors before distributing the estate.
The estate trustee may need to file the deceased’s final income tax return and any required estate or trust returns. A clearance certificate from the Canada Revenue Agency may also be advisable before making the final distribution.
Complete records should be maintained showing all assets received, expenses paid, income earned, and distributions made. Beneficiaries may request an accounting, and formal court approval of the accounts may sometimes be required.
After sufficient provision has been made for debts, taxes, expenses, and potential claims, the remaining estate may be distributed according to the Will or Ontario’s intestacy laws.
The issuance of a probate certificate does not necessarily mean that the estate can be distributed immediately. An estate trustee may be held personally liable for an improper or premature distribution.