Applying for Probate – What It Means and What You Need

If someone has died and you are named as the estate trustee in their will, you may be wondering whether you need probate, how to apply, what it costs, and the responsibilities that accompany the process.

Probate is a court process that confirms the validity of a will and/or an estate trustee’s authority to administer an estate. In Ontario, the Superior Court of Justice confirms an estate trustee’s authority by issuing a Certificate of Appointment of Estate Trustee.

What Happens During Probate?

The named Estate Trustee generally has to:

1. Find the will: Locate the deceased’s most recent valid will (if applicable);
2. Identify the assets: Determine the deceased’s real property, personal property, accounts, investments, and other valuables;
3. Apply for probate: If required, submit an application to the Ontario Superior Court of Justice;
4. Pay the probate tax: If estate administration tax is payable, it must be paid. There is no tax payable on the first $50,000 of the estate’s value. For the value exceeding $50,000, the tax is calculated at a rate of $15 for every $1,000. (https://www.ontario.ca/page/calculating-estate-administration-tax);
5. Obtain the certificate: If the application is approved by the court, an issued document confirming your authority to administer the estate, called a Certificate of Appointment of Estate Trustee will be sent to you electronically, or a hard copy may be available for pick-up;
6. Pay debts and expenses: Settle the deceased’s outstanding bills, taxes, and other obligations;
7. Administer the estate: Distribute the remaining assets to the beneficiaries according to the will.

Do I Need to Apply for Probate?

Probate is not required for every estate. Whether a court certificate is necessary generally depends on the nature of the assets and the requirements of the institutions holding them.

For example, probate may be required to deal with real property or assets held by a financial institution, such as bank and investment accounts. Probate may not be necessary where all assets can be transferred without a court certificate, including assets with designated beneficiaries or jointly owned with a right of survivorship.

Ordinarily, if you are the named Estate Trustee in the deceased’s valid Last Will and Testament, you will need to apply for a Certificate of Appointment of Estate Trustee with a Will to access and administer the estate.

Where, When and How do I Apply?

The appropriate court location will depend on where the deceased person lived. If the deceased did not reside in Ontario, it may depend on where they owned property in the province.

You do not need to travel to the courthouse to submit your application. Applications can be submitted electronically, by email, with original documents delivered separately, via courier or personal service.

What Documents are Required?

1. Form 74A – Application for a Certificate of Appointment of Estate Trustee: the named Estate Trustee’s application to the court;
2. Form 74B – Affidavit of Service: Proof that the required people/beneficiaries received notice of your application;
3. Form 74C – Certificate of Appointment of Estate Trustee: The proposed certificate that you are asking the court to issue;
4. Form 74D – Affidavit of Execution: Completed by a witness who can confirm that the Will was properly signed and witnessed;
5. The original will and death certificate/proof of death;
6. Additional documents if required: these may include renunciations, consents, court orders, or other supporting materials.

Should I Consult a Lawyer?

Retaining a lawyer is highly recommended. Legal advice can help ensure that the application is accurate and complete and that the estate is administered properly.

de VRIES LITIGATION LLP regularly prepares probate applications and assists estate trustees throughout the estate-administration process. We would be pleased to assist you in moving your matter forward efficiently and with confidence.