Apply for probate of an estate

When a person dies, they may leave behind belongings, real estate and other assets and liabilities, which is collectively called their estate.

In Ontario, an estate trustee is the only person with the legal authority to manage or distribute an estate.

Probate is a procedure to ask the court to either:

• give a person the authority to act as the estate trustee of an estate
• confirm the authority of a person named as the estate trustee in the deceased’s will and
• formally approve that the deceased’s will is their valid last will

Apply for probate

If you need to apply for probate of an estate, you can apply to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee or for a Small Estate Certificate.

You can apply for a Small Estate Certificate if the estate is valued at up to $150,000. If the estate is valued at more than $150,000, you can apply for a Certificate of Appointment of Estate Trustee. Learn more about how to apply for probate of a Small Estate.

Probate is not always required in order to administer an estate. The type of assets in the estate usually determine whether an estate should be probated. If the deceased owned real property or assets held by a financial institution, the estate normally must be probated.

Before applying for probate, you may wish to determine whether the person or financial institution holding the estate assets or requiring a payment or action by the estate requires you to obtain a Certificate of Appointment of Estate Trustee or a Small Estate Certificate.

A person may apply for probate if:

• the deceased person died without a will
• the deceased’s will does not name an estate trustee
• a financial institution wants proof of a person’s legal authority to receive the money or investments of the deceased
• the estate’s assets include real property 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 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

Before you start an application for probate, you may want to determine whether anyone else has already started a court application or has been issued a certificate. This can avoid the possibility that your application is rejected because another application was started or a certificate was already issued.

You can look into this by contacting the estate trustee named in the will (if any) or the estate trustee’s lawyer (if any), relatives and friends of the deceased or by contacting 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, you can contact the courthouse in the location where they owned Ontario property.

If you are not the estate trustee, but have an interest in the estate

If you have a financial interest in the estate, you can ask the court to notify you when someone starts any proceedings involving the estate by filing Form 74P with the court.

To learn about an estate’s administration, you can contact the estate trustee and/or the estate trustee’s lawyer. If the Office of the Public Guardian and Trustee ( OPGT ) was appointed as the estate trustee, you can contact them at:

• Tel : 416-314-2800
• Toll-free: 1-800-366-0335

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. However, an estate trustee named in the will may choose to allow someone else to apply. Learn more about administering estates.

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/niece) can apply. The court may appoint the relative who it deems to be the most appropriate person in the circumstances.

How to apply

To apply to the court for probate, you will need to submit documents to the court that are required by the estates court rules, 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
• court forms (information about the deceased’s assets and beneficiaries is needed)

If you do not know where the deceased’s original will is located, learn how to find a will.

Proof of a person's death can be provided by a death certificate or a court order.

A death certificate can be issued by a funeral director. An official Province of Ontario death certificate can be issued by the Registrar General and can be requested online.

1. Complete court forms

• Application* (Form 74A)
• Affidavit of Service* (Form 74B) or Lawyer's Certificate of Service (Form 74B.1)
• Affidavits*, as required (the evidence that is required by legislation and the court rules.
  • For example, for an application with a will, one of the following affidavits must be completed and it must attach the deceased’s original will:
    • Form 74D, an Affidavit of Execution of Will or Codicil
    • or 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

    *An application and an affidavit must be signed before a Commissioner for taking affidavits who must also sign the document. Learn how to find a commissioner for taking affidavits.

    You might also need to complete additional forms, for example:

    • Bond, if required (Form 74L or 74M, see 74.11 and the Estates Act s.35) or motion to dispense with a bond. A Notice of Motion, Affidavit and draft order are filed for this motion).
    • Renunciation, if required (Form 74G, Part A; this is needed if a person who is named in a will as estate trustee or is entitled to be in priority to be an estate trustee has not joined the application)
    • Consent to Applicant’s Appointment as Estate Trustee, if required (Form 74G, Part B; this is 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 that are required depend on the situation. Read Rule 74.04 to find out which court forms and documents you need.

    A lawyer can help you complete the forms. A lawyer can also explain the risks of providing incorrect information in the forms, explain the legal responsibilities of an estate trustee and advise you on whether a bond is needed. Court staff cannot provide you with legal advice, including advice about the completion of forms.

    2. Identify the value of estate assets and pay taxes

    • 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 total value of the estate (that is, the total value of real property + total value of personal property)
    • the tax is not payable
    • 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/firm trust account cheque, trust company account cheque, or bank draft made payable to the “Minister of Finance.”

    3. Serve the necessary documents

    • email, to the person’s last known e-mail address
    • 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
    • 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

    5. Bond

    • the deceased died without a will
    • the deceased died with a will, but the applicant was not named as the estate trustee in the will
    • 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 bond is a guarantee that you will carry out your legal duties as an estate trustee. If you do not do so, your guarantor (called a surety) could be held responsible and required to pay the amount of the bond. The following companies or persons can be proposed as a surety for the bond:

    • an insurer who is licensed in Ontario to write surety and fidelity insurance in Ontario
    • for estates valued at over $100,000, two personal sureties
    • 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.

    A judge must decide the amount of the bond and whether the proposed surety is acceptable. The amount of the bond must be double the amount of the value of the estate unless a judge orders otherwise.

    A judge can also decide whether to make an order that a bond is not required. Preparing and filing the motion material to ask the court to dispense with an estate administration bond can be complicated. You may wish to speak with a lawyer.

    Issuing a Certificate of Appointment of Estate Trustee

    A Certificate of Appointment of Estate Trustee is the document you will receive if your application is successful. The certificate will give you the authority to manage the estate assets and pay the estate debts.

    Application review

    Applications are typically processed within 15 business days. It may take longer if:

    • you do not file all necessary documents or provide all necessary evidence and information
    • if the material filed raises an issue that requires a judge to make a decision

    Once your application is filed, court staff will determine whether a Certificate of Appointment of Estate Trustee can be issued to you. This involves determining whether all of the required information, evidence and documentation was submitted and searching the estate court records to learn if:

    • any other person has made the same application to the court
    • any person has objected to your application
    • a more recent will was deposited with the court than the one you filed

    To ask about the status of your application, you can contact either:

    • your lawyer
    • the estates court office where your application was filed

    If you filed your application by email, court staff will contact you by email. If a certificate is issued it will be emailed to you. If you filed by mail, then the certificate will be mailed to you.

    If your application is successful

    If your application is successful, you will be issued a Certificate of Appointment of Estate Trustee.

    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. Learn how to file an Estate Information Return.

    If your application is refused

    Court staff will notify you or your lawyer if either:

    • the estate court record search reveals a problem that prevents the court from issuing a Certificate of Appointment of Estate Trustee
    • you did not provide the required information, evidence or documentation

    This written notice, called a Registrar’s Notice to Applicant in an Application for a Certificate of Appointment of Estate Trustee (Form 74O), will indicate the reason that the certificate has been refused.

    If you receive this notice because you failed to provide documents, information or evidence, you can submit revised or additional materials if court staff request it.

    If you receive this notice because the estate court record search revealed a problem, you must take steps to address the problem. For example, if the Registrar advises you that a beneficiary filed a Notice of Objection (Form 75.1), you must send or give a notice to the objector (Form 75.3) and file a copy of this form with the court with an affidavit of service.

    If court staff determine that your application involves an issue that needs a decision by a judge, a judge will review your application and may make a court order.

    Speaking to a lawyer

    Probate is time and labour intensive, and estates issues can be complicated so you may want to speak with a legal professional. You should contact a lawyer if you want them to apply for probate on your behalf or you have questions about:

    • whether a probate application is necessary
    • how to apply for probate of an estate
    • your legal duties and responsibilities as an estate trustee
    • your legal risks

    You may also want to speak with a lawyer if you believe another person may challenge your application or make a claim against the estate.

    Additional resources

    • Learn how an estate may be distributed.
    • For more information about probate, visit:
      • Estates Act
      • Estates court rules (called the Rules of Civil Procedure)
      • Estate court forms