Overview
When a person dies they may leave behind belongings, real estate and other assets and debts which is called their estate.
In Ontario, an estate trustee is the only person with the legal authority to manage or distribute an estate.
Probate is a procedure to ask the court to:
- give a person the authority to act as the estate trustee of an estate
- confirm the authority of a person named as the estate trustee in the deceased’s will
- formally approve that the deceased’s will is their valid last will
If you need to apply for probate of an estate, there are two different streams you can use, depending on the total value of the estate:
- If the estate is valued at $150,000 or less, you can apply for probate through the optional and simplifiedsmall estate court process
- For estates of any value, you can apply for probate through the regular court process (Application for a Certificate of Appointment of Estate Trustee).
Apply for probate of a small estate
As of April1, 2021, a small estate is defined for probate purposes as an estate that is valued at $150,000 or less.
You can use a simplified process if you are applying for probate of an estate that is valued at $150,000 or less. The process is set out in the:
- Estates Act
- estate court rules (also called the Rules of Civil Procedure)
If your application is successful, the court will issue a probate certificate for a small estate, known as a Small Estate Certificate. The certificate will give you the authority to manage the estate assets that are listed in the certificate.
Who can apply
A person or organization can apply for probate of a small estate.
If you apply, you must explain why you are entitled to apply. For example, indicate if you are:
- named as the estate trustee in the deceased’s will
- appointed as the estate trustee by a court order
- entitled to apply under legislation
When a person dies without a will, the spouse or common-law partner usually has the first right to apply, then next-of-kin.
The next-of-kin (also called heirs-at-law) are determined by legislation in the Succession Law Reform Act. In this situation, the court may appoint the next-of-kin who it deemed to be the most appropriate person.
How to apply
To apply to the court for probate of a small estate, you must file the required documents with the court. These documents include:
- the deceased’s original will, if any
- any addition or supplement to the will that explains, changes or revokes a will or part of a will
- proof of death
- court forms (requiring information about the deceased’s assets and beneficiaries)
If you do not know where the deceased’s original will is located, learn how to find a will and how to obtain proof of death.
1. Complete court forms
You must complete certaincourt formsfor your application, including the following:
- Application* (Form 74.1A)
- Request to File an Application* (Form 74.1B)
- Affidavits*, as required (the evidence that is required bylegislationand thecourt rules)
- For example, for an application with a will, one of the following affidavits must be completed and it must attach the deceased’s original will:
- Draft Small Estate Certificate(Form 74.1C)
*An application and an affidavit must be sworn/affirmedbefore aCommissioner for taking affidavitswho must also sign the document.
The type of forms that are needed will depend on the situation. ReadRules 74.1 and Rule 74to find out which court forms and documents you need.
2. List the estate assets and taxes
In the court application form (Form 74.1A), you must list:
- estate assets
- value of the assets
Learn how to identify and determine the value of an estate assets.
You must also list each estate asset in the draft certificate (Form 74.1C).
You should describe each asset in the same way in the application form and in the draft certificate. You should describe each asset in the detail that is required by the person or organization who is holding the asset.
For example, if the asset is a car that is held in the name of the deceased, you should indicate the vehicle details (VIN, year, make, model), as required by the Ministry of Transportation.
Court staff are unable to provide you with advice on how to identify an asset in your application material. You may wish to seek legal advice and/or to discuss the description of the asset with the holder of the asset before you start your application.
The Estate Administration Tax is charged on the value of the estate of a deceased person as of the date of their death.
If the value of the small estate is $50,000 or less, you do not need to pay the Estate Administration Tax. For small estates valued over $50,000 and up to $150,000, you need to pay the Estate Administration Tax.
You must calculate the Estate Administration Tax and pay the tax when your court application is filed, unless either:
- the tax is not payable
- a court orders the deferral of the tax payment
The tax can be paid at the court office by:
- cash or debit (where available)
- certified cheque, solicitors/firm trust account cheque, trust company account cheque, or bank draft made payable to the “Minister of Finance.”
3. Serve the necessary documents
You must send or give a copy of the application form to anyone who is entitled to a share of the estate, including the estate beneficiaries.
The copy that you send or give to them must be signed by you before a Commissioner for Taking Affidavits in Ontario who must also sign.
You can send the application by either:
- email, to the person’s last known e-mail address
- regular letter mail or courier to the person’s last known address
If there are minors or incapable adult beneficiaries involved, you may need to send the application form to:
- the Office of the Children’s Lawyer
- the Office of the Public Guardian and Trustee
You must send the signed application form to anyone who is entitled to a share of the estate, or their legal representative 30 days before you file your documents with the court.
4. File documents with the court
The application and supporting court documents must be filed with the Superior Court of Justice. Your Request to File an Application for a Small Estate form (Form 74.1B) must indicate that you sent or gave the application to the people who are entitled to a share of the estate at least 30 days before you file the documents with the court.
This should be done at the court in the county or district where the deceased lived at the time of their death. If the deceased was not living in Ontario when they died, contact the courthouse in the location where they owned Ontario property. Find court locations in Ontario.
You must pay Estate Administration Tax when you submit your application to the court. The tax can be paid by certified cheque, money order, bank draft, lawyers’ trust account cheques and debit.
You can mail the application documents and tax payment to the appropriate court location. You can also file your probate application with the court by email. To file by email, you must follow the process in this Superior Court of Justice notice.
5. Bond
An estate administration bond is a bond that is posted by an administrator of an estate to assure that they will do their duties according to the provisions of the will and legislation. The bond covers any financial losses to the estate due to dishonest or improper acts by the administrator. Learn more about estate administration bonds.
A bond is required for a small estate when either:
- the applicant is not a resident in Ontario or in a province or territory of Canada or in a Commonwealth country
- there are minor or incapable adult beneficiaries and the deceased died without a will or the applicant is not named in the will as estate trustee, and
- the applicant is not the deceased’s spouse, or
- the applicant is the deceased’s spouse but has not filed an affidavit asking the court to dispense with the bond
Issuing a Small Estate Certificate
A Small Estate Certificate is the document you will receive if your application is accepted. The certificate will give you the authority to manage the assets listed on the certificate.
Application review
Small estate applications will usually be processed within five business days. It will take longer if:
- you do not file all necessary documents or provide all necessary evidence and information
- if the material filed raises an issue that requires a judge to make a decision
Once your application is filed, court staff will determine whether they can issue a Small Estate Certificate. This involves searching the court records to learn:
- if any other person has made the same application to the court
- if any person has objected to your application
- if a more recent will was deposited with the court than the one you filed with the court
To ask about the status of your application you can contact either:
- your lawyer
- the estates court office where your application was filed
If you filed your application by email, court staff will contact you by email. If a Small Estate Certificate is issued it will be emailed to you. If you filed by mail, then the certificate will be mailed to you.
If your application is successful
If your application is successful you will be issued a Small Estate Certificate, giving you the authority to manage the assets listed on the certificate.
Within 180 calendar days of receiving a Small Estate Certificate, you must file an Estate Information Return, which lists the value of the deceased’s assets at the time of death, with the Ministry of Finance. It must be provided even if the value of the estate is less than $50,000 and no tax is payable.
If your application is refused
Court staff will notify you or your lawyer if either:
- the court record search reveals a problem that prevents the court from issuing a Small Estate Certificate
- you did not provide the required information, evidence or documentation
This written notice, called a Registrar’s Notice to Applicant in an Application for a Small Estate Certificate or Amended Small Estate Certificate (Form 74.1D), will indicate the reason that the Small Estate Certificate has been refused.
If you receive this notice because you failed to provide documents, information or evidence, you can submit revised or additional materials if court staff ask you to.
If court staff determine that your application involves an issue that needs a decision by a judge, a judge will review your application and may make a court order.
Probate of additional assets
If you are issued a Small Estate Certificate and later discover additional estate assets that you are not authorized to manage, you may need to return to the court to get authority to manage those assets.
$150,000 or less
You can bring an application to the court for an Amended Small Estate Certificate (Form 74.1E) if the combined value of the new assets discovered, plus the value of the assets that are listed in your Small Estate Certificate, equals $150,000 or less.
The application for an amended certificate requires you to identify the additional assets and their value. If the court issues an Amended Small Estate Certificate (Form 74.1F), it will list both the assets listed in the original Small Estate Certificate and the additional estate assets.
More than $150,000
You can bring an application to the court for a Certificate of Appointment of Estate Trustee if the new assets result in a total estate value that is more than $150,000.
Speaking to a lawyer
Contact your lawyer if you have questions about:
- how to apply for probate of a small estate
- your legal duties and responsibilities as an estate trustee
- your legal risks
You may also want to speak with a lawyer if you believe another person may challenge your application or make a claim against the estate.
If you do not have a lawyer, you can find a lawyer through the Lawyer Referral Service of the Law Society of Ontario.
Additional resources
- For more information about probate, visit:
- Estates Act
- Estates court rules (called theRules of Civil Procedure)
- Estate court forms
