Applications for probate with a Will in Ontario

The application process is complex. Regardless of the simplicity of the estate and the Will a number of issues must be considered and proper documents prepared, signed, and filed.

The steps include –

• Find the Will, and determine if it is valid and probatable
• Determine who has the right to apply as estate trustee
• Determine the correct Court to file in
• Assemble the application package, with all of the correct and complete materials and signatures, and file it.

Determining if there is a valid Will

First, find the Will. More information about finding Wills is found here.

Second, determine if any document you have located is probatable as a Will. If there is no affidavit of execution, determine the best way to prove that the signature on the document is the signature of the testator. More information about affidavits of execution, holograph Wills, and substantial compliance is found here.

Entitlement to apply for probate

Determine the order of executors named in the Will. If any named executor with a prior right to the actual applicant will not be applying, collect the appropriate evidence (death certificate, renunciation).

If the applicant is not a named executor in the Will, or resides outside Ontario, address the issue of bonding either by securing a surety bond or filing appropriate materials to request a Court order dispensing with a bond.

Determine where to file

The Application must be filed in the Court having jurisdiction where the deceased last resided in Ontario. In some regions of the Greater Toronto Area, this can be a challenge (for instance, Milton is the Court for Durham Region). When the deceased did not reside in Ontario at the time of their death, it is usually best to choose the location of any real estate that they owned in Ontario, and failing that, the location where they last resided in Ontario or where the asset requiring probate (such as a bank account) is nominally located.

The Application Package

The application for a Certificate of Appointment as Estate Trustee with a Will is actually a package of items. It is not just one Court form.

All applications must contain:

• the properly executed (sworn and notarized) Rule 74 Court form (different forms apply for different applications, especially for Small Estates)
• proof of service of the application on beneficiaries, if required
• an original death certificate (from the funeral home is usually sufficient, not an official Ontario death certificate)
• the original Will
• proof of the signature of the Will, usually via an affidavit of execution of the Will with the Will properly marked as an Exhibit to the Affidavit of Execution;
• payment in full of the Estate Administration Tax by way of money order, bank draft, or certified cheque (or see below), and
• two draft copies of the requested Certificate of Appointment of Estate Trustee Without a Will.

Depending on the circumstances, additional materials that must be included in an application can include –

• if the applicant is not the first-named executor in the Will evidence of the death of pre-deceased executor(s) and/or renunciations of all executors with a prior right to the applicant who are not applying;
• materials to support a request for an Order to dispense with a bond or a surety bond; if an Order to dispense is sought, all required signed consents; and,
• materials to support a request for an Order deferring payment of the Estate Administration Tax.

Most applications filed by do-it-yourself applicants are rejected at least once. This significantly increases the processing delay, and thus the delay before the trustee can ‘get started’ on administering the estate.