Applying for probate in Ontario is the act of an estate trustee applying for a certificate of appointment. This document provides the estate trustee legal authority to act on behalf of the estate and carry out the wishes of the deceased.

To obtain a certificate of appointment, the estate trustee must gather all important documents and information of the deceased; such as the valid will (if it exists), death certificate, beneficiary identification, and more to successfully apply for probate.

In this guide, we will break down everything you need to know about applying for probate in Ontario.

Not just anyone can apply to be an estate trustee so this begs the question; who is authorized to apply for probate?

Well, there are mainly 2 entities that can apply for probate:

1. The executor (estate trustee) as outlined in the deceased’s final will.
2. The next-of-kin, much like in order of Ontario’s intestate succession (where spouse has priority, then children, parents, siblings, nephews)

Note:

In some cases, the Office of the Public Guardian and Trustee can be appointed an administrator when no one else is willing or able to do so.

If you are one of: the named executor(s) in the will, or eligible next of kin of the deceased and intend to apply for probate - you will need to gather all important documents about the deceased.

Gathering Important Documents of The Deceased

First things first, gather all of the pertinent documents about the deceased in relation to their estate - such as:

• Final valid will and codicils (if applicable)
• Lists of estate assets and financial accounts
• Marriage contract (if applicable)
• Proof of death/death certificate
• Necessary probate court documents

While these are the documents most necessary for a successful probate application, it’s not just limited to.

Which forms does someone need to apply for probate? Well, let us explain:

Step 1: Prepare Forms for Application

Following the recent streamlining of Estate court forms, with the latest changes effective April 1, 2024, the Ontario court now offers a straightforward probate application process.

To apply for probate, you will need the following forms:

• Form 74A - Application for a Certificate of Appointment of Estate Trustee
• Form 74B - Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee
• Form 74D - Affidavit of Execution of Will or Codicil
• Form 74E - Affidavit of Condition of Will or Codicil

If the deceased had a holographic will, the executor requires:

• Form 74F - Affidavit Regarding a Holograph Will or Codicil

If the deceased passed away without a will:

• Form 74G - Renunciation and Consent
• Form 74H - Consent

While form 74H was recently amended on April 1st, 2024 - O. Reg. 388/23, s. 1 (2). Estate trustees applying for a certificate of estate trustee without a will, requires 2 forms depending on the situation:

Form 74G (Renunciation) is mandatory when there are individuals who are entitled to be appointed as estate trustees but have chosen not to apply for the role themselves. This includes:

• If there is a will, every living person named in the will or codicil as an estate trustee who has not joined the application and is entitled to do so must provide a renunciation.
• If there is no will, every person who is entitled in priority or is in equal right to be named as estate trustee and who has not joined the application must renounce their right to be appointed.

Form 74H (Consent to the Applicant's Appointment) is required in situations where the applicant is not named as an estate trustee in the will or there is no will. It must be provided by:

• In the absence of a will, or if there is a will but the applicant is not named as an estate trustee in it, a consent form must be obtained from persons who are entitled to share in the distribution of the estate and who, together, hold a majority interest in the value of the estate's assets at the date of death.

If the decedent passed away without a will, the estate trustee applying for probate may require an estate administration bond, which in Ontario can be done in the form of a Personal surety or Insurance.

If a bond is needed you will need either of these forms:

• Form 74M - Personal Bond Sureties
• Form 74L - Insurance or Guarantee Company Bond

Step 2: Notify Beneficiaries of Application Submission

As part of the probate application process, you must share a copy of your completed application form with all individuals entitled to the estate, prominently including beneficiaries.

Ensure that the document you distribute is duly signed by you in the presence of an Ontario Commissioner for Taking Affidavits, who must also authenticate it.

Methods of Distribution:

Email: Directly to the beneficiary’s most recent email address.

Mail or Courier: To the beneficiary's latest physical address, utilizing standard postal service or courier options.

Special Considerations:

In cases where the estate includes minors or adults deemed incapable of managing their affairs, the application form should also be sent to relevant legal guardians or representatives. This typically involves:

For Minors: The Office of the Children’s Lawyer.

For Incapable Adults: The Office of the Public Guardian and Trustee.

Timing: Ensure all relevant parties have received the application form before you proceed with filing your application at the court.

Step 3: File and Apply for Probate with the Superior Court

You can file your application for probate in two (2) ways:

1. E-filing via Email
2. Physical filing at the superior court.

How to E-File for probate:

For those opting to file probate documents by email, adherence to the following streamlined protocol is mandatory:

Prepare final forms for submission: Alongside the required probate forms, complete an Information Form (information form can be found here). Email these to the court, including all requisite documents such as affidavits, consents, proof of death, time of death, renunciations, draft certificates, and motions.

*** Emails to the respective Superior Court of Justice probate division, can be found here: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/email-probate/ ***

Mandatory email subject line: Craft your email's subject to clearly state the court acronym, law area, court file number (if available), and document type.

For example:

"SCJ – ESTATES – ES-1234567 – Application for Certificate of Appointment of Estate Trustee"

"SCJ – ESTATES – new file – Application for Certificate of Appointment of Estate Trustee" Attachment Guidelines:

• Ensure each email, with attachments, is under 35MB.
• Attachments must be PDF format, with each PDF containing only one court form and labeled with the form number and document type.
• Original and Certified Documents: Submit originals (e.g., wills, bonds) and certified copies via mail or courier to the court location where the application was filed, or in person.

Payment of Estate Administration Tax:

Estate administration tax otherwise known as probate fees and filing fees should be sent by mail or courier, or paid in person by cheque, or over the phone via secure credit card transaction. Issuance of Probate Certificates: Certificates will be digitally issued and sent to the applicant's email.

Corrections and additions:

If notified by court staff of necessary corrections, resend documents via email. For additional document requests, follow court staff guidance on which can be emailed and which must be physically submitted.

How to physically apply for probate:

File at the correct court location: File your application and supporting documents at the Superior Court of Justice located in the county or district where the deceased resided at the time of death. For non-residents of Ontario, file where the deceased owned property within Ontario.

Estate Administration Tax: This tax is payable upon application submission. Acceptable payment methods include certified cheque, money order, bank draft, lawyers’ trust account cheques, and debit.

Reasonable to note: The estate administration tax is applied to estate with values of amounts in excess of $50,000. Levying a 1.5% fee on the gross estate value of over $50,000. To help you with your probate fee calculation, use our probate fee calculator:here

Submission Methods:

Mail: Send your application documents and tax payment to the designated court location.

In-Person: You may also choose to file your application directly at the court office, offering a more hands-on approach to ensure all documents are promptly received and processed.

After a successful application, an estate trustee will be appointed and granted the authority to act on behalf of the estate - This includes notifying beneficiaries and creditors, locating assets, paying debts, making distributions, paying taxes, and more to settle the estate.

The estate administration process can be broken down into 5 stages:

1. Notifications and Application: The executor obtains a Certificate of Appointment of Estate Trustee, allowing them to act legally on behalf of the estate. Subsequently, beneficiaries and creditors are notified.
2. Asset Management: The executor's next step involves identifying, collecting, and valuing the deceased’s solely owned assets, including everything from real estate and bank accounts to personal possessions.
3. Tax Affairs and Debts Settlement: The estate trustee is responsible for filing the final income tax return of the deceased, addressing any outstanding taxes, ensuring all debts owed by the estate are paid and receiving the tax clearance from the CRA.
4. Distribution of Assets: With debts settled and taxes paid, the executor proceeds to distribute the remaining assets among the beneficiaries according to the will's specifications. This stage may involve liquidating assets to facilitate equitable distribution or transferring specific assets to named beneficiaries.
5. Finalizing the Estate: The last phase sees the executor obtaining releases from beneficiaries, confirming they have received their due inheritance and are satisfied with the estate's management. Once all releases are collected, the executor can apply for a certificate of distribution, allowing for the official closure of the estate.

Probate does not have to be hard.

While probate may be a long and drawn-out process, it doesn’t have to be.

Dealing with a loved one's affairs after they've passed—like figuring out what they owned, locating real property, notifying banks, notifying estate beneficiaries, filing the estate information return, sorting out estate taxes—can make a tough time even tougher.

ClearEstate makes applying for probate, and support throughout the entire probate process easy. Book a free consultation with our estate advisors today, where one of our experienced advisors can help guide you through the probate process.