When a person passes away, ideally they have left behind a will that outlines how their assets (such as property, investments, and personal belongings) should be distributed. In Ontario, the person legally authorized to carry out these directions is called the estate trustee.
To confirm that the will is valid and that the executor named in the will has the authority to act, the estate may need to go through a Court process called probate.
What Is Probate?
Probate is the legal procedure through which a will is reviewed and formally approved by the Superior Court of Justice. If the court is satisfied that the will is valid, it issues a Certificate of Appointment of Estate Trustee. This certificate serves as proof that the executor has the legal authority to administer the estate in accordance with the will.
What if there is no Will?
If there is no will, the court can still issue a Certificate of Appointment of Estate Trustee Without a Will, which authorizes someone (usually a next of kin) to manage and distribute the estate under Ontario’s Succession Law Reform Act.
What Is a Certificate of Appointment?
A Certificate of Appointment of Estate Trustee is the official document that confirms the executor’s legal authority to act on behalf of the estate. Historically, this process was known as “Letters Probate” or simply “probate.”
Obtaining this certificate involves submitting an Application for Certificate of Appointment of Estate Trustee to the court, which typically includes:
- The original will (if one exists)
- A death certificate
- An affidavit of execution of the will’s witnesses
- Form 74A (applications for a Certificate of Appointment of Estate Trustee and Small Estate Certificate) or 74C (draft certificates) depending on the circumstances
- Payment of the Estate Administration Tax
If the court is satisfied with the application, it will issue the certificate, authorizing the executor to administer the estate — including collecting assets, paying debts, filing tax returns, and distributing inheritances.
When is probate required?
Not every estate requires probate, but many do. Probate is generally required when:
- The deceased died without a will.
- The will does not name an executor or the executor is unable to act.
- The estate includes real property not held in joint tenancy.
- The sale of real property requires proof of authority.
- Financial institutions demand proof before releasing funds or investments.
- There is a dispute about the will’s validity or about who should act as executor.
- A beneficiary is a minor or otherwise unable to give legal consent.
In most other cases, particularly where assets are held jointly with a right of survivorship (for example, between spouses), probate may not be necessary because the assets pass automatically to the surviving joint owner.
Do I Need a Certificate of Appointment?
It depends on the nature of the estate and the assets involved. If the estate includes real property, large investments, or corporate shares, a Certificate of Appointment is typically required.
This certificate is often required by banks, financial institutions, and land registries before they will release funds, transfer assets, or allow the sale of property belonging to the deceased.
Because of these complexities, it’s often best to consult an estate lawyer to determine whether probate is necessary in your situation and to ensure the application is prepared correctly.
Frequently Asked Questions (FAQ)
1. How long does probate take in Ontario?
Probate timelines vary, but most applications take 6 to 12 weeks to process after filing. Complex estates or disputes can extend this timeframe.
2. How much does probate cost?
You’ll need to pay an Estate Administration Tax (formerly known as probate fees), calculated at $5 per $1,000 for the first $50,000 of estate value and $15 per $1,000 thereafter.
3. Can probate be avoided?
In some cases, yes — particularly if most assets are jointly owned or have named beneficiaries (e.g., life insurance, RRSPs). However, avoiding probate entirely is rare and should be carefully planned.
4. What happens if there’s no will?
If someone dies without a will, a family member or interested party can apply for a Certificate of Appointment of Estate Trustee Without a Will. The estate will then be distributed according to the Succession Law Reform Act, not personal preference.
5. Do all banks require probate?
Not always. Some institutions will release funds from small accounts without a certificate, but this depends on their policies and the estate’s total value. Always confirm with the institution before proceeding.
6. Can I apply for probate without a lawyer?
Yes, but it’s not recommended for most estates. The forms, tax calculations, and procedural requirements can be complex. A lawyer ensures your application is accurate and compliant with Ontario’s court rules.
Need Help Navigating Probate in Ontario? Chapman Steffler LLP Is Here to Guide You.
Probate can feel overwhelming — especially when you’re grieving and trying to ensure your loved one’s wishes are respected. Whether you’re unsure if you need a Certificate of Appointment, preparing a probate application, or facing delays or complications with financial institutions or real property, Chapman Steffler LLP can provide clear, step-by-step guidance. Our estate lawyers help you understand your obligations, avoid costly mistakes, and move the process forward with confidence and peace of mind.
Contact Chapman Steffler LLP today to schedule a consultation and get trusted legal support through every stage of the probate and estate administration process.
