Probate is the process by which the courts certify and legitimize the will (if there is one) and grant authority to an estate trustee to manage and distribute the assets (the deceased’s real property and personal property).
Probate is not always required and depends on what the person owned at the time. Usually, if the person owned real property or assets over a certain amount with a financial institution, probate will be required to access and manage these assets.
How Probate Works in Ontario
In Ontario, the probate application process is done by completing a specific application and submitting it and the required accompanying documentation to the courts. This involves gathering information about what, and who, the deceased left behind.
Valuing the Estate
One of the major factors determining the complexity and cost of the probate process is the value of the estate. The value of the estate is calculated by adding together the real property and personal property values, which includes assets such as real estate, household effects, bank accounts, and investments. Not everything that the deceased owned necessary counts as part of the estate.
Some kinds of financial accounts and products, such as pensions, tax-free savings accounts, insurance policies, etcetera allow for them to assign beneficiaries and upon your death, these funds can be transferred directly to the beneficiary and avoiding being added to the grand total of the deceased’s estate.
Under $150,000
If the estate is valued at under $150,000, you can use the small estate application. While the form is very similar to the general application, these estates go through a streamlined process intended to simplify and speed up the application.
Determine Who Needs to be Notified
Depending on whether or not the deceased died with a will, and who could have been considered a dependent or invested party, there will be different obligations as to who must be notified of the application.
For those who die with a will, all beneficiaries named in that document must be notified. For those who die without a will, the beneficiaries will vary depending on the deceased’s marital status and their next of kin. For more on rules of inheritance when someone dies without a will, see here.
The Most Important Form in the Application: 74A (or 74.1A)
Besides the value of the estate and interested parties, there will be other sections of the application asking questions about their will, their relationships, and other basic life information necessary for the courts to feel they have a full picture of the estate and who is potentially involved. Along with 74A, there are other forms that will need accompany it, varying depending on your circumstances.
Depending on the value of the estate, you will be using either Form 74A or Form 74.1A as the main part of the application (sample of the first page of each below). Full versions of the documents can be found here.
A Successful Application – Next Steps
When a judge has reviewed and approved a probate application, the court issues a Certificate of Appointment for Estate Trustee (a copy of a blank one is included below) and notifies the applicant. Once the certificate has been issued, whoever was appointed now has the authority to manage and distribute the estate.
They will need to get notarized copies of the Certificate of Appointment, and the will, and provide these copies to financial institutions, real estate lawyers, and others who require proof of authority to act on behalf of the estate. The estate trustee will be responsible for ensuring they competently complete their duties in a reasonable time frame.
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Possible Obstacles in the Probate Process
Objections
Someone opposes the appointment of whoever is applying to be executor for the estate. This could be because they do not believe that person to be capable for one reason or another, because they believe that the will appointing this person is not a valid one, or because they have an interest in the estate that they feel needs to be addressed before an appointment can be made. This can result in lengthy and costly court proceedings.
Incomplete Information
Should the forms not be filled out with all of the relevant and required information (for example: the affidavit isn’t properly witnessed, the beneficiary information isn’t complete, there is a missing signature or checked box, etcetera), you will need to fix the errors and resubmit the paperwork. This delays the process, can cause major headaches, and frustrate beneficiaries.
Incorrect Information
Errors, even simple typos, can result in the application being rejected, requiring revision and resubmission.
What Is Probate In Ontario – A Quick Summary
While the probate process in Ontario is generally completed through the streamlined process, each application is unique and requires the reviewing court to carefully consider the individual circumstances. Some may require more scrutiny or revisions, and the court will communicate with the applicant if they require further information before deciding whether to grant the application.
The probate process is intended to formally approve a valid will and/or give a person authority to act as estate trustee and overall ensure that the estate is properly managed and distributed. Talk to one of our estate planning lawyers today to learn how we can assist you in drafting your will to avoid any potential roadblocks or issues with the probate process and if possible, avoid it all together.
How long does probate in Ontario take?
Unfortunately, this is incredibly hard to predict. There are a number of factors influencing the time it takes: the backlog at the specific court the application was filed at, whether there was a will and if it was properly witnessed and signed, whether there are any objections, the size and complexity of the estate, just to name a few. With those considerations in mind, it is commonly cited that it normally takes between 6-8 weeks for an Ontario court to process a probate application.
Do all estates have to go through probate in Ontario?
No. It is usually determined by the type of assets the deceased owned at the time of their death. If they owned real property or assets held by a financial institution, the estate usually needs to be probated. However, there are exceptions to both of these situations and effective estate planning can assist in avoiding probate and/or minimizing your estate value for probate purposes.
Can a house be sold before probate in Ontario?
If the estate requires probate, a house cannot be sold without a Certificate of Appointment of Estate Trustee, obtained through a successful probate application. However, there are some circumstances where if probate is not otherwise required, the house may qualify for a real estate exemption, allowing probate to be avoided.
When Probate Is Required in Ontario (and When It Is Not)
Probate is not always required. Whether you need it depends on what the deceased owned and how those assets were held.
Probate is generally required when:
- Real estate is held solely in the deceased’s name. The Ontario land registry will not transfer or allow the sale of titled property without a Certificate of Appointment of Estate Trustee.
- Bank or investment accounts above the institution’s threshold (often $25,000 to $50,000) are held only in the deceased’s name. Banks require formal proof of authority before releasing funds.
- The will is being challenged or its validity is unclear (for example, missing witnesses or signature defects).
- The named executor needs court confirmation to act on contracts, leases, or business interests.
Probate is generally NOT required when:
- Assets pass directly through joint ownership with right of survivorship, such as a home held jointly with a spouse.
- Accounts and policies have a named beneficiary outside the will. RRSPs, RRIFs, TFSAs, life insurance, and many pensions transfer directly to the beneficiary.
- The estate qualifies for the Small Estate Certificate process. Estates valued at $150,000 or less use a streamlined application with reduced documentation.
- All assets are personal property of low value held outside financial institutions, and no third party requires confirmation of authority.
Even when probate is technically optional, banks and land registries apply their own internal thresholds. Always confirm with the relevant institution before assuming probate can be skipped.
How Long Does Probate Take in Ontario?
The probate timeline depends on the court’s backlog, the complexity of the estate, and whether anyone challenges the application.
Court review typically takes 6 to 8 weeks once the application is filed and complete. Some courts move faster (around 4 weeks) and some slower (12 weeks or more), depending on regional volume. Toronto, Brampton, and Newmarket courts often see longer waits than smaller jurisdictions.
The full estate administration process, from death to final distribution, usually runs 8 to 12 months for a straightforward estate. Larger or more complex estates can take 18 months to 3 years.
Common factors that extend the timeline:
- Missing or incomplete supporting documents (death certificate, original will, asset valuations).
- Beneficiaries living outside Ontario, who must be served notice and may require foreign witnesses for affidavits.
- Real estate that needs to be appraised or sold before distribution.
- Outstanding tax obligations. The Canada Revenue Agency must issue a Clearance Certificate before final distribution, which can add 6 to 12 months on its own.
- Will challenges, dependants’ claims under the Succession Law Reform Act, or disputes among beneficiaries.
Executors who act quickly (gathering documents, valuing assets, and filing the application within the first few months) typically complete probate noticeably faster than those who delay.
How Probate Fees Are Calculated in Ontario (Estate Administration Tax)
What most people call “probate fees” is the Ontario Estate Administration Tax (EAT). It applies to the total value of all assets passing through probate.
The current rate structure:
- $0 on the first $50,000 of estate value
- $15 for every $1,000 (or part thereof) above $50,000
So an estate valued at $250,000 owes $0 on the first $50,000 plus $15 x 200 = $3,000 in EAT. An estate valued at $1,000,000 owes $0 plus $15 x 950 = $14,250.
Important details:
- Only assets that flow through probate count toward the EAT base. Joint property, named-beneficiary accounts (RRSPs, TFSAs, life insurance), and assets held in trust are excluded.
- The EAT is calculated on the value at the date of death. Subsequent gains or losses do not change the tax owed.
- Payment is due when the probate application is filed. Most courts accept certified cheque or bank draft made out to the Minister of Finance.
- For estates under $150,000, the Small Estate Certificate process applies the same fee schedule with simpler paperwork.
Estate planning techniques can reduce the EAT base. Multiple wills (one for assets requiring probate, one for assets that do not), beneficiary designations, joint ownership, and properly structured trusts can all move assets outside the probate calculation. Talk to an estate lawyer if you want to explore these options before your will is finalized.
