Probate is usually the first step in administering an estate, and it’s also the step that causes the most confusion. If you have been named an estate trustee, you may be wondering whether you need probate, how the process works, how much it costs, and how long it will take.
This guide to probate law in Ontario discusses the probate process, the responsibilities of an estate trustee, and when working with a probate lawyer in Ontario can help you avoid costly mistakes.
How does Probate Law Work in Ontario?
“Probate” isn’t a defined legal term in Ontario. What it actually refers to is applying to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee, either with a will or without one, under the Estates Act and Rule 74 of the Rules of Civil Procedure.
This certificate confirms two things: that the will (if there is one) is valid, and that the person named has the legal authority to act as estate trustee in Ontario. Banks, the land registry office, investment firms, and other institutions typically require this certificate before they’ll release the deceased’s assets or allow property to be transferred, since it’s the court’s confirmation that the person in front of them is legally entitled to act.
Do You Always Need Probate in Ontario?
Not every estate requires it. Some assets pass outside the estate entirely and don’t require a certificate to transfer:
- Property held in joint tenancy with a right of survivorship, which passes automatically to the surviving owner
- RRSPs, RRIFs, TFSAs, and life insurance policies with a named beneficiary, which pass directly to that beneficiary
What is a Small Estate in Ontario?
For estates that do need court involvement, Ontario has offered a simplified process since April 1, 2021, for “small estates” valued at $150,000 or less. Under Rule 74.1 of the Rules of Civil Procedure, the estate trustee can apply for a Small Estate Certificate through a simpler application, generally without needing to post a bond (bonds are otherwise required in many circumstances to protect beneficiaries and creditors from mismanagement). This simplified process doesn’t change how Estate Administration Tax is calculated or the requirement to file an Estate Information Return; it only streamlines the court application itself.
For estates above that threshold, where the will names an out-of-province trustee, or where beneficiaries are minors or otherwise vulnerable, the standard probate process under Rule 74 applies.
Whether a specific estate needs probate at all often depends on what the deceased owned and how it was held, which is exactly the kind of assessment a probate lawyer can make quickly.
Step-by-Step: The Probate Process
-
- Locate and review the will. Confirm it’s the most recent version and that it’s properly executed under the Succession Law Reform Act.
- Identify and value estate assets. Identify and value all assets that form part of the probatable estate as of the date of death.
- Prepare and file the application. This includes the appropriate court forms, along with the required notices to beneficiaries and, in some cases, to the Children’s Lawyer or Public Guardian and Trustee.
- Pay the Estate Administration tax. The applicable tax is usually paid when applying for the estate certificate, although certain procedures allow an estimated value to be used.
- Wait for the court to process the application. Processing times vary significantly by region and court backlog.
- Receive the Certificate of Appointment of Estate Trustee. Once issued, the estate trustee can use it to deal with financial institutions, the land registry, and other parties.
- File the Estate Information Return. This is due within 180 calendar days of the certificate being issued and reports the value of the estate’s assets to the Ministry of Finance.
Costs Involved
The main cost tied to probate is the Estate Administration Tax (EAT), sometimes called “probate fees”.
For estate certificates applied for on or after January 1, 2020:
- The first $50,000 of the estate’s value is exempt from EAT.
- Amounts over $50,000 are taxed at $15 for every $1,000, or part of $1,000, of estate value.
For example, if an estate is valued at $1 million:
- The first $50,000 is exempt.
- The remaining $950,000 is subject to tax at $15 per $1,000.
- The EAT would therefore be $14,250.
Beyond the tax itself, there are legal fees for preparing and filing the application.
Estate Trustee Compensation
Estate trustees are also generally entitled to compensation for their work. Under section 61 of the Trustee Act, an estate trustee is entitled to a “fair and reasonable allowance” for the care, pains, trouble, and time spent administering the estate. The Act itself doesn’t set a fixed rate; in practice, Ontario courts commonly use this as a guideline of around 5% of the estate (roughly 2.5% on the value of assets the estate receives, plus 2.5% on what it pays out), though this is only a starting point. A court can adjust it up or down based on the complexity of the estate, the time involved, and the results achieved, and a will can also set its own compensation terms that override the guideline.
Timelines
There’s no fixed timeline for probate in Ontario, and it varies significantly by court region and by how complete the application is. A straightforward, uncontested application can sometimes be processed in a matter of weeks; more complex estates, or applications filed with missing information, can take considerably longer.
Factors that commonly extend the timeline include:
- Contested wills or disputes among beneficiaries
- Missing or hard-to-locate beneficiaries
- Complex or hard-to-value assets, such as business interests
- Incomplete applications that require correction and resubmission
Common Pitfalls for Estate Trustees Handling Probate Without Legal Help
Acting as an estate trustee carries real legal responsibility, and mistakes made along the way aren’t always easy to fix afterward. Some of the most common pitfalls include:
- Distributing assets before obtaining a CRA clearance certificate. Under the Income Tax Act, an estate trustee who distributes estate property before receiving this certificate can be held personally liable for any unpaid taxes, interest, or penalties, up to the value of what was distributed.
- Missing the Estate Information Return deadline, or filing it with inaccurate asset values, which can lead to penalties.
- Distributing the estate before resolving creditor claims, which can expose the estate trustee to personal liability if a valid claim surfaces afterward.
- Getting caught in the middle of beneficiary disputes without the procedural knowledge to manage them properly, which can delay administration and increase legal costs for everyone involved.
How a Probate Lawyer Helps
A probate lawyer helps an estate trustee navigate this process by:
- Preparing and filing the court application correctly the first time, reducing delays caused by errors or missing documentation
- Advising on whether the estate genuinely requires probate, or qualifies for the simplified small estates process
- Helping determine appropriate holdbacks and coordinating with an accountant on the terminal tax return and CRA clearance certificate
- Protecting the estate trustee from personal liability by ensuring debts, taxes, and creditor claims are properly addressed before distribution
- Managing contested applications or disputes among beneficiaries, so the estate trustee isn’t navigating conflict alone
Handling probate correctly protects both the estate and the person who agreed to take on the responsibility of administering it. Getting the right guidance early on can prevent many of the costliest and most stressful problems that arise later in the process.
Frequently Asked Questions
Do I need probate if there’s a will?
Not necessarily. Whether probate is required depends on what the deceased owned, not just whether a will exists. Assets held jointly or with named beneficiaries generally pass outside the estate, while assets like real estate held solely in the deceased’s name and most financial institution accounts typically require a Certificate of Appointment of Estate Trustee before they can be transferred.
How long does probate take in Ontario?
There’s no set timeline. Simple, uncontested applications can be processed in a matter of weeks in some court regions, while more complex or contested estates can take considerably longer.
How much does probate cost in Ontario?
The main cost is the Estate Administration Tax: no tax on the first $50,000 of estate value, and 1.5% on the remainder. Legal fees, court filing fees, and executor compensation (commonly guided by a roughly 5% benchmark) are separate from this tax.
Can I be personally liable as an estate trustee?
Yes. An estate trustee who distributes assets before obtaining a CRA clearance certificate, or before resolving valid creditor claims, can be held personally liable for amounts owed, up to the value of what was distributed.
What happens if someone contests the will during probate?
A contested application can significantly delay the process and typically requires the estate trustee to respond to the court and the parties involved. Legal guidance is especially important in these situations, since the estate trustee has ongoing duties to the estate even while a dispute is being resolved.
If you’ve been named an estate trustee and aren’t sure where to start, our Wills & Estate Planning team can guide you through the probate process from start to finish. Contact GS Brar Law to speak to a probate lawyer in Brampton at 1-905-291-3297.
