Probate can be a daunting process, so it’s essential to know how it works. The probate process varies across provinces and territories, so the following article will explore the intricacies and nuances of probate in Ontario.
Whether you're dealing with a loved one's estate or just curious about the process, keep reading to learn more about probate in Ontario.
- Probate is not always necessary when handling an estate in Ontario, but it is typically required for estates that involve property like real property or assets held by financial institutions.
- To apply for probate in Ontario, you need to prepare and submit a probate application. This application includes various documents, such as the deceased's will, proof of death (like a death certificate), and other court forms.
- Valuing the estate’s assets is a critical part of the probate application, as it dictates the probate fees, or the Estate Administration Tax, to be paid.
- Probate applications can be approved or denied. If they’re approved, a Certificate of Appointment of Estate Trustee will be granted, allowing the deceased’s assets to be distributed and debts to be paid off.
What is probate in Ontario?
Probate is a process that happens across Canada, however the rules vary across provinces and territories. Probate is a legal process where the courts formally accept a will–like a legal check to make sure that a person's will is real, valid and follows the law. Probate also gives the executor permission to administer the estate as outlined in the will.
Across Canada, the probate process is generally the same, with the except of a few nuances in certain provinces. Today, we’ll explore the specific requirements and other nuances of the probate process in Ontario.
When is probate required in Ontario?
Probate isn’t always a mandatory step when administering an estate in Ontario. It often depends on the type of assets held within the estate. For example, if the deceased person owned real estate or if they had assets in the custody of a financial institution over a certain value (less than $50,000), the estate is typically required to go through the probate process.
So, typically only estates of small value will avoid probate in Ontario.
How is the province for probate determined?
If an estate goes through the probate process, it will typically do so in the province where the testator, or the person who wrote the will, resided.
There are some items to consider before the probate process is started.
How to know if an estate qualifies for probate
First, it’s important to determine if an estate qualifies for probate. The Government of Ontario lists the following criteria for reasons that an estate should go through probate:
- the deceased person died without a will
- the deceased’s will does not name an executor or an estate trustee
- a financial institution wants proof of a person’s legal authority to receive the money from bank accounts or investments of the deceased
- the estate’s assets include real property (for example, buildings or financials) which does not pass to another person by right of survivorship
- the deceased’s real property must be sold (a Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone enters into an Agreement of Purchase and Sale)
- there is a dispute about who should be the executor or estate trustee
- there is a dispute or potential dispute about the validity of the will
- some beneficiaries named in the will are not able to provide legal consent
Determine the status of the probate application
Next, you should determine if anyone else may have started a probate application already, as your application will be rejected if one has already been started.
If you are not sure, you can try contacting these people first:
- The executor of the will
- The testator’s estate lawyer
- Relatives or friends of the deceased
- The court office in the county or district where the deceased lived
Identify who is eligible to apply for probate
Lastly, make sure that the person applying for probate is eligible to do so.
If the deceased had a will, typically the executor will apply for probate. If the deceased died intestate (when a person dies with no will in place), it is typically the following people that have the right to apply for probate:
- The deceased’s spouse or common-law partner
- A close adult relative of the deceased (a child, parent, sibling, etc.)
In cases of no will, the court may choose to appoint the person that they deem most appropriate, not the person that you would have chosen yourself. Just another reason to make sure you have a will in place!
How to apply for probate in Ontario
Once you’ve reviewed the pre-probate considerations and are ready to submit a probate application in Ontario, you can follow the below steps.
Step 1: Prepare the probate application
The first step in the probate process is submitting a probate application. There are several documents that need to be submitted with the application, including:
- the deceased’s original will, if they prepared one
- any additional documents to the will that explain, change or revoke a will or part of a will
- proof of death, such as a death certificate
- other court forms
Complete the probate court forms
As noted above, there are some court forms that must be completed with the probate application. The court forms for Ontario probate are listed and described here.
The types of forms that are required depend on the situation. Ontario’s Rule 74.04 provides information about the court forms and documents that are needed based on the situation.
However, these documents can be overwhelming, and there can be risks to providing incorrect or incomplete information in the forms. If you’re not sure how to proceed, an estate lawyer can help you complete the forms.
Determine the value of the estate
An important part of the probate application that must be entered in the court forms is the value of the estate’s assets. The value of an estate includes, but is not limited to:
- the total value of real property owned by the deceased at the time of death (for example, land, buildings, etc.)
- the total value of personal property owned by the deceased at the time of death (for example, personal belongings such as jewelry, artwork, furniture, any other items, etc.)
The value of the estate is important because it determines the estate taxes to be paid. These taxes will be explained in the next step of the probate process.
Notify relevant people of the application
Once the probate application is complete, and BEFORE it is submitted to the court, the estate beneficiaries, or anyone else who is entitled to a part of the estate, must be notified. In Ontario, they can be notified by email, mail, or courier.
Step 2: File the probate application with the Ontario courts
Once the probate application and relevant court forms are completed, the probate application can be submitted to the Superior Court of Justice. This should be done at the court in the county or district where the deceased lived when they died.
The application can be submitted in person, by mail, or email.
Pay the Probate Fees, i.e. the Estate Administration Tax
There are two main taxes that your estate may incur after you pass:
- A final income tax return
- Probate taxes
In Ontario, the probate tax is called the Estate Administration Tax and it must be paid when the probate application is submitted. The Tax is based on the value of the estate.
How much are probate fees in Ontario?
Ontario uses an increasing scale based on the size of the estate, the percentage increases on estate amounts in excess of $50,000. So for larger estates, the minimum probate fee may start at $15 for every $1,000 in assets.
Fees valid as of July, 2023, accessed from the Government of Ontario.
To calculate the tax on an Ontario estate, you can use the Estate Administration Tax calculator here.
Probate fees for each Canadian province and territory can be viewed in our guide “Everything You Need To Know About Probate in Canada”.
Step 3: Review the outcome of your Ontario probate application
Once the probate application is submitted, there are two general outcomes: it is approved or denied.
If your probate application is successful
If your probate application is successful, you will be issued a Certificate of Appointment of Estate Trustee. The certificate means that the executor now have the authority to manage the assets in the estate and pay any estate debts. In other words, they can begin distributing assets to the estate beneficiaries.
If your probate application is denied
There are two main reasons why probate applications are denied:
- court records reveal a problem that prevents the court from approving the application, for example, if someone else has already submitted an application
- the required information, evidence or documentation wasn’t provided
If there is an issue, the court may have a judge review the application to determine next steps. If there is incomplete or incorrect information, you may have the opportunity to submit revised or additional materials.
Other frequently asked questions about probate in Ontario
How long does probate take in Ontario?
Preparing and submitting a probate application varies based on the complexity of the estate. However, once an application is submitted, it is typically processed within 15 business days.
How do I check the status of my probate application in Ontario?
There are two ways to check the status of your application:
- Contact your lawyer
- Contact the estates court office where your application was filed
How can I avoid probate in Ontario?
In many cases, probate cannot be completely avoided. However, there are some ways that assets can be separated from an estate, thereby avoiding probate. You can read strategies for avoiding probate here.
When is probate not required in Ontario?
Probate is often not required for very small and simple estates.
Also, in some cases, if all assets in the estate are jointly owned with a surviving spouse or if there’s beneficiary designations for registered accounts, the estate does not go through probate. However, this only applies if the jointly owned assets have a right of survivorship, i.e. they transfer directly to the surviving account holder.
If you’re not sure, it’s best to speak with a lawyer to determine if probate applies.
What assets are not subject to probate in Ontario?
There are some assets that are not subject to probate in Ontario, including:
- assets that the deceased had before death but not at the time of death, such as insurance that will be paid to a named beneficiary
- assets where there is joint ownership that automatically become assets of the other owner(s)
- real estate outside of Ontario
- CPP Death Benefit
- RPPs, RRSPs, RRIFs and TFSAs with a beneficiary designation or beneficiary declaration
- RDSPs to which the deceased subscribed to but was not a beneficiary
- debts owing by the deceased, such as credit card debts, car loans, lines of credit, etc.
To read more about assets that are included and excluded in probate, visit the Government of Ontario website here.
What are the new probate rules in Ontario?
Probate rules can change from time-to-time, so it is important to review them online or with an estate lawyer. For example, beginning January 1, 2020, the Estate Administration Tax was eliminated for the first $50,000 of the value of the estate in Ontario.
Now that you’ve learned about the probate process in Ontario, you can feel confident knowing that you understand what is required and when. Probate in Ontario is much simpler when the deceased had a comprehensive estate plan in place, including a will. Complete your will today for peace of mind.