Ontario Probate Success – Your Essential Guide

If you apply for probate in Ontario, you will file an application for a certificate of appointment. This post outlines steps to prove who can deal with a person’s estate. It is for information purposes only and does not explain your legal duties as the estate’s personal representative, executor or estate trustee.

You should obtain legal advice before you act as executor or estate trustee. This advice includes a review of the will(s). The sooner you obtain this legal advice, the safer you will be. Read my executor’s glossary to help you.

1. Find the Original Will

First, if there is a will, you must find the original signed will. If there is no will, you need legal advice about what reasonable searches are required to locate any will.

New legal rules allow judges to validate documents that do not satisfy all legal requirements for death on or after January 1, 2022.

Documents that could amend or represent formal wishes may need to be saved and reviewed by your lawyers.

If there is a will, the witnesses to the will must sign a document under oath called an affidavit of execution. This document confirms the will was properly signed. This affidavit must be filed with the court.

The original will is also filed with the estate court with your application to prove the will is legally valid. Your appointment as estate trustee with a will (or without a will) must be certified by the court to administer the estate.

If all documents are in order, the court issues an estate certificate. This is called a “certificate of appointment of estate trustee” (with or without a will).

2. Court Application to Appoint Estate Trustee

Lawyers prepare your estate application and legal forms to file with the court. There are different forms for estates valued at less than $150,000 than for estates valued over $150,000. At filing, the provincial estate tax is paid. This tax is called Ontario’s estate administration tax (EAT). It was once called provincial probate tax.

Notice is mailed to all estate beneficiaries. This informs them you are applying to administer the estate.

You usually do not need to appear in court. The estate court issues a certificate without anyone appearing in court. Court processing can take months depending on the volume of applications filed and additional time for any corrections. After this, the court can issue an estate certificate with a will.

The estate court staff reviews estate court applications. They check for details and can request extra materials before submitting documents for final approval. Judges may accept or require additional information.

This process is usually done without anyone appearing in court. It can take 3-6 months or longer.

3. How to Prepare the Estate Inventory

You need to prepare an estate inventory for your lawyer with fair market values as at the date of death. This inventory is used to calculate both provincial estate administration tax (EAT). It is not filed with the court.

You identify which assets are controlled by the will. World-wide assets are valued and subject to provincial EAT if they are controlled by wills.

Designated assets can have named beneficiaries. These designated assets include: life insurance, registered investment plans or pensions and are not subject to provincial probate tax if beneficiaries are named.

Please see my separate guide on how to prepare an estate asset inventory.

4. Calculating Provincial Estate Administration Tax (EAT)

No debts, except for mortgages, can be deducted to calculate EAT. Credit card debt and funeral expenses are not deducted.

Assets that are designated to named persons as beneficiaries (other than to the “estate of”) are not subject to estate administration tax. Ontario taxes are roughly 1.5% on estate assets over $50,000.00. There is no tax on the first $50,000.00 of estate assets.

I will prepare a draft estate inventory for you to approve. This will estimate the provincial tax payable. You are not required as executor or estate representative to pay any estate debts using your own money.

Certified Cheque or Bank Draft required for Ontario Minister of Finance

In the past, bank drafts were provided to pay the provincial EAT when the estate court application is filed.

Bank policies have changed and bank drafts or certified cheques for EAT from the deceased’s own bank may not always be available.

5. Provincial Probate Penalties

Estate trustees who under report provincial estate tax face penalties for not including or misrepresenting estate values. Penalties can include:

a) a fine of at least $1,000 or twice the tax payable by the estate;
b) imprisonment for not more than 2 years; or
c) both.

Appraisals and supporting documents are usually required to substantiate your values.

As estate trustee, you must retain financial records for a minimum of six years. You can be reassessed for EAT and income taxes.

What if you discover errors in your estate asset inventory? You are required to pay any extra provincial estate tax. You also must amend the EIR.

How to Get Started

Have questions about probate? Need help with administering an estate? I can help you on your journey as an Ontario estate trustee. Contact me for a meeting. I have helped estate trustees for decades to solve estate issues by going to court or through mediation.

I can offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation meeting today to avoid making any scary mistakes.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.