Probate With a Will in Ontario

Learn when probate with a Will may be required in Ontario, what the application involves, expected costs and timelines, and how Nobari Law can assist.

When a person dies leaving a Will, the individual named as executor may need to apply to the Ontario Superior Court of Justice for a Certificate confirming their authority to administer the estate. This court process is commonly known as probate.

In Ontario, the document issued by the Court is called a Certificate of Appointment of Estate Trustee with a Will. The person appointed by the Court is formally known as the estate trustee, although many people continue to use the more familiar term “executor.”

The Certificate formally confirms the estate trustee’s authority and may be required to deal with estate assets, financial institutions, real property, and other matters arising during the administration of the estate.

If the deceased did not leave a valid Will, the probate process and the requirements for appointing an estate trustee are different. Learn more about probate without a Will in Ontario.

Having a Will does not automatically eliminate the need for probate. A Will identifies the deceased’s wishes and usually names an executor, but banks, investment companies, land registry offices, purchasers, and other third parties may require formal proof that the executor has authority to act.

Probate may be required where:

• real estate is registered solely in the deceased’s name and a Certificate is required to sell or transfer it;
• a bank or investment institution requires a court-issued Certificate;
• assets are held solely in the deceased’s name and the institution holding them requires probate; or
• another person or organization requires formal proof of the estate trustee’s authority before releasing, transferring, or dealing with an estate asset.

Probate may not be necessary for every estate. For example, certain jointly owned assets may pass directly to the surviving joint owner, and assets with valid beneficiary designations may pass outside the estate. However, the treatment of each asset must be reviewed individually.

The decision is not based only on the size of the estate or the number of beneficiaries. An institution holding an estate asset may still require probate even where the estate is modest or all beneficiaries agree.

A probate application with a Will generally requires the estate trustee and their lawyer to collect and review information about the deceased, the Will, the beneficiaries, and the estate assets.

The process may include:

1. Locating and reviewing the original Will and any codicils.
2. Reviewing the Will and the evidence concerning its execution.
3. Obtaining proof of death.
4. Identifying the beneficiaries and other persons who must receive notice.
5. Obtaining the estate asset information and date-of-death values required for the application.
6. Providing the required notice of the application.
7. Preparing and filing the probate application and supporting documents.
8. Paying any required Estate Administration Tax.
9. Responding to questions or notices issued by the Court.
10. Obtaining the Certificate of Appointment of Estate Trustee with a Will.

Additional documents may be needed where a named executor has died or wishes to renounce.

Estate trustees can also use our Probate Document Checklist to begin gathering commonly requested information and documents.

The total timeline depends on both the preparation of the application and the Court’s processing time.

Preparation may take longer where:

• the estate contains numerous or difficult-to-value assets;
• financial information is incomplete;
• the original Will cannot immediately be located;
• an executor must renounce;
• signatures or supporting affidavits are required; or
• beneficiaries cannot be located.

Once the application is filed, processing times differ depending on the courthouse, the Court’s workload, the completeness of the documents, and whether the Court requests corrections or additional information.

Because processing times change, an exact timeframe cannot be guaranteed. A carefully prepared and complete application can help reduce the risk of avoidable rejection or delay.

Receiving the Certificate is an important step, but it does not complete the administration of the estate.

After probate, the estate trustee may still need to:

• secure and manage estate property;
• close or transfer financial accounts;
• sell or transfer real estate;
• identify and pay valid debts;
• file the deceased’s tax returns;
• file the Estate Information Return with the Ontario Ministry of Finance within the applicable deadline, where required;
• keep detailed estate accounts;
• communicate with beneficiaries;
• obtain tax advice or a Canada Revenue Agency clearance certificate where appropriate; and
• distribute the remaining estate according to the Will.

Ontario estate trustees may also have post-probate filing obligations, including an Estate Information Return, depending on the type of Certificate issued.

Probate is only one part of administering an estate. Learn more about our estate administration services and the responsibilities that may continue after the Certificate is issued.

The length of the estate administration depends on the nature of the assets, tax matters, creditor issues, and beneficiary circumstances.

Estate trustees have significant responsibilities and may be personally accountable if estate assets are distributed too early, proper records are not maintained, or legal and tax obligations are overlooked.

Estate trustees may also be entitled to compensation for their work. Learn more about executor compensation in Ontario.

The cost of probate may include:

• Estate Administration Tax;
• legal fees for preparing and filing the application;
• valuation or appraisal expenses;
• fees for obtaining records or searches;
• accounting and tax-preparation costs; and
• additional expenses required by the particular estate.

Estate Administration Tax is generally calculated based on the value of the estate disclosed for the estate certificate, subject to the applicable rules governing which assets and deductions are included.

There is no Estate Administration Tax on the first $50,000 of the estate’s value. For any amount above $50,000, the tax is $15 for every $1,000, or part of $1,000.

The estate assets and their date-of-death values should be reviewed carefully before the probate application is filed.

In most cases, appropriate probate and estate-administration expenses are paid from the estate rather than being personally borne by the estate trustee, subject to the circumstances of the matter.

An executor is generally permitted to prepare and file a probate application without retaining a lawyer. However, estate applications involve court documents, notice requirements, asset valuation, tax considerations, and legal responsibilities.

Errors may result in the application being returned or the Court requesting further information. Obtaining probate does not, however, relieve the estate trustee of their responsibility to administer the estate properly.

The estate trustee should begin gathering information reasonably soon after the death. Some initial time may be needed to locate the Will, obtain proof of death, identify estate assets, and address immediate family and property matters.

The appropriate timing depends on the estate. Unnecessary delay can create practical difficulties where property expenses continue, assets require protection, debts and taxes remain outstanding, or beneficiaries are awaiting information.

Nobari Law Professional Corporation provides practical legal assistance with probate applications and related estate matters in Ontario.
 

Our services may include:

• reviewing the Will and supporting documents;
• explaining the estate trustee’s responsibilities;
• identifying the documents required for the application;
• reviewing the estate asset information and date-of-death values provided for the probate application;
• preparing and filing the probate application;
• addressing court questions or requests for further information;
• advising on notices, renunciations, and consents;
• assisting with estate property and real estate matters; and
• providing legal guidance during the administration of the estate, where requested.

Every estate is different. Nobari Law Professional Corporation provides practical and personalized assistance based on the Will, estate assets, beneficiaries, and responsibilities facing the estate trustee.

Contact Nobari Law Professional Corporation to discuss your circumstances and learn how we may assist with a probate application or the administration of an Ontario estate.