How to Apply for Probate in Ontario

The short answer

In Ontario, probate means asking the Superior Court of Justice for a Certificate of Appointment of Estate Trustee — or, for an estate valued at $150,000 or less, a Small Estate Certificate. The estate trustee is the only person with the legal authority to manage or distribute an estate. Probate is not always required: the type of assets usually decides it. If the deceased owned real property or assets held by a financial institution, the estate normally must be probated.

This guide is process only. It states the steps the Ontario government pages set out. It gives no legal advice, and it does not advise you on whether you should apply, who should be estate trustee, or how an estate should be divided. Court staff cannot provide legal advice, including advice about completing forms. If the estate is contested, or if a bond, a motion, or a judge's decision is involved, speak to a lawyer.

Before you apply

A person may apply for probate if the deceased died without a will, if the will does not name an estate trustee, if a financial institution wants proof of a person's legal authority to receive the money or investments of the deceased, if the estate's assets include real property that does not pass to another person by right of survivorship, if the deceased's real property must be sold (a certificate should be obtained before anyone enters into an Agreement of Purchase and Sale), if there is a dispute about who should be the estate trustee, if there is a dispute or potential dispute about the validity of the will, or if some beneficiaries named in the will are not able to provide legal consent.

Before you start, check whether anyone else has already started a court application or has been issued a certificate. An application can be rejected because another application was started or a certificate was already issued. Ask the estate trustee named in the will, if any, or that person's lawyer, relatives and friends of the deceased, or the court office in the county or district where the deceased lived at the time of death. If the deceased was not living in Ontario when they died, contact the courthouse where they owned Ontario property.

If you are not the estate trustee but have a financial interest in the estate, you can ask the court to notify you when someone starts proceedings involving the estate by filing Form 74P with the court.

Who can apply

If there is a will, the person named as the estate trustee in the will is typically the one to apply for probate. An estate trustee named in the will may choose to allow someone else to apply. If no will exists, the deceased's spouse or common-law partner usually has the first right to apply for probate, then a close adult relative of the deceased (child, parent, grandchild, sibling, or nephew or niece) can apply. The court may appoint the relative it deems to be the most appropriate person in the circumstances.

The two streams

There are two streams, and the value of the estate decides which one you can use:

• Small estate — $150,000 or less. As of April 1, 2021, a small estate is defined for probate purposes as an estate valued at $150,000 or less. The simplified process is optional. If the application succeeds, the court issues a Small Estate Certificate, which gives you the authority to manage the estate assets listed in the certificate.
• Regular — any value. For estates of any value, you can apply for a Certificate of Appointment of Estate Trustee through the regular court process.

How to apply: the regular stream

To apply to the court for probate, you need to submit the documents the estates court rules require, including the deceased's original will, if any, any addition or supplement to the will that explains, changes, or revokes a will or part of a will, proof of death, and court forms. Proof of death can be a death certificate or a court order. A death certificate can be issued by a funeral director, and an official Province of Ontario death certificate can be issued by the Registrar General and requested online.

1. Complete court forms

You need to complete certain court forms, including:

• Application (Form 74A)
• Affidavit of Service (Form 74B) or Lawyer's Certificate of Service (Form 74B.1)
• Affidavits, as required — for an application with a will, one of: Form 74D, an Affidavit of Execution of Will or Codicil; Form 74E, an Affidavit of Condition of Will or Codicil if the will was altered or marked in some way; or Form 74F, an Affidavit attesting to the handwriting and signature of a holograph will for a holograph (handwritten) will
• Draft Certificate of Appointment of Estate Trustee (Form 74C)

An application and an affidavit must be signed before a Commissioner for taking affidavits, who must also sign the document.

You might also need: a bond, if required (Form 74L or 74M, see rule 74.11 and the Estates Act, section 35), or a motion to dispense with a bond; a renunciation, if required (Form 74G, Part A, needed if a person named in a will as estate trustee, or entitled in priority to be estate trustee, has not joined the application); or a consent to the applicant's appointment as estate trustee, if required (Form 74G, Part B, needed where a person dies without a will, and where there is a will but the applicant is not named as estate trustee). The type of forms required depends on the situation. Read Rule 74.04 to find out which court forms and documents you need.

2. Identify the value of the estate and pay the tax

In the application form (Form 74A), you must identify the total value of real property owned by the deceased at the time of death, the total value of personal property owned by the deceased at the time of death, and the total value of the estate. The Estate Administration Tax is charged on the value of the estate as of the date of death. You must calculate the tax and pay it when your court application is filed, unless the tax is not payable or a court orders the deferral of the tax payment. The tax can be paid at the court office by cash or debit (where available), certified cheque, solicitors or firm trust account cheque, trust company account cheque, or bank draft made payable to the Minister of Finance.

If you apply for an estate certificate on or after January 1, 2020: you do not need to pay Estate Administration Tax if the value of the estate is $50,000 or less. For estates valued over $50,000, the tax is $15 for every $1,000 (or part of $1,000) of the value of the estate above $50,000. The estate value is rounded up to the nearest thousand. For an estate valued at $240,000, the tax is $2,850: $0 on the first $50,000, and $15 times 190 on the remaining $190,000. The tax is paid by the estate, not by the estate representative. Funeral expenses, lawyer's fees, loans, credit card debts, and real estate commissions cannot be deducted to reduce the total value of the estate; only an encumbrance such as a mortgage can be deducted from the value of the real property it is on.

3. Serve the necessary documents

You must send or give a copy of the application form to anyone who is entitled to a share of the estate, also referred to as the estate beneficiaries. The copy must have been signed by you in the presence of a Commissioner for Taking Affidavits in Ontario, who must also have signed it. You can send it by email to the person's last known email address, or by regular letter mail or courier to the person's last known address. If there are minors or incapable adult beneficiaries involved, you may need to send the application form to the Office of the Children's Lawyer and the Office of the Public Guardian and Trustee. You must send or give the application to the estate beneficiaries before you file your application with the court.

4. File documents with the court

The application and supporting court documents must be filed with the Superior Court of Justice, at the court in the county or district where the deceased lived at the time of their death. If the deceased was not living in Ontario when they died, the application should be filed in the court location where they owned Ontario property. You can mail the application documents and tax payment to the appropriate court location. You can also file by email, following the process in the Superior Court of Justice Practice Direction.

5. Bond

An estate administration bond is a bond posted by the trustee of an estate to assure that they will do their duties according to the will and the law. A bond is required to be filed with the probate application when the deceased died without a will, when the deceased died with a will but the applicant was not named as the estate trustee in the will, or when the deceased died with a will but the applicant is not a resident in Ontario, or in a province or territory of Canada, or in a Commonwealth country. The amount of the bond must be double the amount of the value of the estate unless a judge orders otherwise. A judge must decide the amount of the bond and whether the proposed surety is acceptable. For estates valued at over $100,000, two personal sureties can be proposed; for estates valued at $100,000 or less, one personal surety. A personal surety must be an adult Ontario resident, have sufficient assets to pay the amount of the bond, and cannot be a lawyer or court registrar.

How to apply: the small estate stream

The small estate process follows the same shape with different forms and two timing differences. The forms are: Application (Form 74.1A), Request to File an Application (Form 74.1B), affidavits as required (Form 74D, 74E, or 74F as above), and a draft Small Estate Certificate (Form 74.1C). In the application form you must list the estate assets and the value of the assets, and you must also list each estate asset in the draft certificate. The small estate page sets out the same tax rule: if the value of the small estate is $50,000 or less, you do not need to pay the Estate Administration Tax; for small estates valued over $50,000 and up to $150,000, you need to pay it.

The timing differences are:

• Serve 30 days before filing. You must send the signed application form to anyone who is entitled to a share of the estate, or their legal representative, 30 days before you file your documents with the court. Your Request to File an Application for a Small Estate (Form 74.1B) must indicate that you did so.
• Bond rules are narrower. A bond is required for a small estate when the applicant is not a resident in Ontario or in a province or territory of Canada or in a Commonwealth country, or when there are minor or incapable adult beneficiaries and the deceased died without a will or the applicant is not named in the will as estate trustee, and the applicant is not the deceased's spouse, or the applicant is the deceased's spouse but has not filed an affidavit asking the court to dispense with the bond.

After you file

Applications are typically processed within 15 business days for the regular stream, and small estate applications are usually processed within five business days. Either can take longer if you do not file all the required documents or evidence, or if the material raises an issue that needs a judge to decide. Once your application is filed, court staff determine whether a certificate can be issued, including searching the estate court records to learn whether any other person has made the same application, whether any person has objected, and whether a more recent will was deposited with the court than the one you filed.

If your application is successful, you will be issued a Certificate of Appointment of Estate Trustee, or a Small Estate Certificate. Within 180 calendar days of receiving a certificate, you must file an Estate Information Return, which lists the value of the deceased's assets at the time of death, with the Ministry of Finance. You must file it even if the calculated value of the estate is $0, and even if the value is less than $50,000 and no tax is payable. You do not need to file an Estate Information Return if the court issued a Certificate of Appointment of Succeeding Estate Trustee, a Certificate of Appointment of Succeeding Estate Trustee with a Will Limited to the Assets Referred to in the Will, a Certificate of Appointment of Succeeding Estate Trustee without a Will, or a Certificate of Appointment of Estate Trustee During Litigation.

If your application is refused, court staff will notify you or your lawyer in a written notice called a Registrar's Notice to Applicant (Form 74O for a regular application, Form 74.1D for a small estate), which states the reason. If the refusal is because you failed to provide documents, information, or evidence, you can submit revised or additional materials if court staff ask you to.

If you are issued a Small Estate Certificate and later discover additional estate assets that you are not authorized to manage, you may need to return to court. If the combined value of the new assets plus the assets listed in your certificate is $150,000 or less, apply for an Amended Small Estate Certificate (Form 74.1E). If the total is more than $150,000, apply for a Certificate of Appointment of Estate Trustee.

What you pay at filing — and what comes later

There is no separate court filing fee for the first application. The fee schedule in O. Reg. 293/92, section 2, sets no fee for an application for a Certificate of Appointment of Estate Trustee or a Small Estate Certificate: what you pay when you file is the Estate Administration Tax deposit. Court fees apply to later steps instead: $138 for a certificate of succeeding estate trustee or a certificate of estate trustee during litigation, $432 for an application to pass accounts, $232 for most other estate applications, $94 for a notice of objection, and $28 to deposit a will or codicil for safekeeping. The fees in the regulation are adjusted for inflation on January 1, 2027, and every third January 1 after that, so confirm the current figures before you file.

What the opened pages do not state

No lawyer cost is stated. No rule about how long a certificate stays valid once issued is stated, because none could be verified on an opened page. No processing time beyond the typical 15 business days (regular) and five business days (small estate) is stated. Confirm any later-step fee with the estates court office where you file before you rely on a figure from another source.

Related guides:

• How to Apply for Probate in British Columbia — British Columbia's grant process, for comparison with Ontario's certificate process.
• How to Apply for Probate in Quebec — Quebec's verification process, which works differently from Ontario's.
• How to Apply for Probate in Alberta — Alberta's grant process through the Surrogate Digital Service.
• How to Write a Will in Ontario — Ontario's will rules, which decide who the estate trustee is in the first place.
• How to Make a Will in Canada — the national wills guide.
• How to Order a Death Certificate in Canada — the death certificate the estate trustee needs as proof of death.

Sources

• Government of Ontario, Apply for probate of an estate — the two certificates, when probate is needed, who can apply, the regular-stream forms (74A, 74B, 74D, 74E, 74F, 74C, 74L, 74M, 74G), serving beneficiaries before filing, filing at the Superior Court of Justice, the bond rules, the typical 15-business-day processing time, and the 180-day Estate Information Return.
• Government of Ontario, Probate of a small estate — the $150,000 small estate definition as of April 1, 2021, the small-estate forms (74.1A, 74.1B, 74.1C), the 30-day service rule, the tax rule for small estates, the five-business-day processing time, and the amended-certificate route for additional assets.
• Government of Ontario, Estate Administration Tax — no tax at $50,000 or less, $15 for every $1,000 above $50,000, the $240,000 worked example giving $2,850, the deposit paid by the estate, and what cannot be deducted from the estate value.
• Government of Ontario, O. Reg. 293/92: Superior Court of Justice and Court of Appeal — Fees — section 2: no fee listed for the first certificate application, the later-step estate fees, and the January 1, 2027 inflation adjustment in section 6.