You’ve lost someone close to you, and now the bank says you can’t touch their accounts until you “get probate”.
Most people don’t think about probate until they lose a loved one and then suddenly, it’s the one word that stands between them and accessing the estate. Understanding how probate works can save time, money, and a lot of frustration.
In the estate’s world, we often forget that the language we use on a day-to-day basis tends to be foreign to those encountering these processes for the first time. This blog aims to clarify the key concepts of probate in a straightforward manner.
What is Probate?
Probate is the formal legal process in which a Court validates a deceased person’s will. Once a will is “probated” the estate trustee(s) may begin administering the assets of the estate. In simple terms, probate is the Court’s confirmation that the will is valid and that the named estate trustee has the authority to act. Think of it as the Court’s stamp of approval. While technically, the designated estate trustee can begin managing assets immediately upon the death of the deceased, they will often face practical and administrative barriers without probate.
Although the term “probate” is still a commonly used, the terminology was updated in 1995 via the Rules of Civil Procedure and the Estates Administration Act.[1] Today, the correct term is ‘Certificate of Appointment of Estate Trustee with a Will’.[2] This change also updated the gendered language of executor/ executrix, to estate trustee. While these changes seem like trivial distinctions, it is helpful to know, so that if you find yourself dealing with a legal professional and they mention applying for a certificate of appointment, you know they mean probate, or vice versa.
What Does Probate Do? And Why Bother?
The Application for the Certificate of Appointment of Estate Trustee, or Probate, confirms the estate trustee’s authority to deal with the assets of the deceased person. The estate trustee is the person the deceased has designated to handle the assets of the estate with an ultimate goal of distributing the assets in accordance with the terms of the will.
Although the authority of an estate trustee to administer the assets of a deceased person’s estate comes from the will itself, and takes effect immediately upon the deceased’s death,[3] the probate process is especially necessary in today’s modern landscape. This is because the contemporary ownership of assets is often intertwined with third-party institutions such as banks, dealerships, land title offices, mortgage brokerages, etc. These institutions are understandably reluctant to handover the assets of a deceased individual to just anyone who walks in waving a will around.[4]
It is also important to know that if someone dies without a will, while a similar process occurs, it would not technically be referred to as probate. Rather, when a person dies without a will, or intestate, application may be made for a certificate of appointment of estate trustee without a will.
When is Probate Necessary
Probate is typically necessary because institutions such as banks, land title offices, and third parties require an estate trustee to produce their certificate of appointment as proof before transferring or dealing with estate assets. This is especially true with respect to real estate, bank accounts, and brokerage accounts held in the deceased’s name alone.
The Courts have clarified that while an executor can theoretically act upon the deceased’s death, probate is often required as a matter of internal policy because probate serves as reliable evidence of an individual’s proper authority when dealing with third parties or when bringing or defending actions in court.
As a final note, multiple probate proceedings may be necessary where real property is owned in multiple jurisdictions, whether across Canada or internationally.[5] Foreign probate, however, is quite a complicated topic and as such it is better left for another day but just know its complicated and costly.
Who can be an Estate Trustee?
Generally, the appointment of an estate trustee is wholly the testator’s (person making the will) decision and should be a provision contained within the will. The testator may name any capable person or corporation to act as their estate trustee.
In the absence of a valid appointment, or if the designated estate trustee has pre-deceased the testator or is otherwise unable/ unwilling, the Court may select a suitable person. Alternatively, the Trustee Act allows for any person beneficially interested in the estate to apply.[6] If no private individual is willing or able to act, the Public Guardian and Trustee may be appointed to apply for administration.[7]
In all appointments, the Court’s overriding concern is the proper and impartial administration of the estate, with the discretion to refuse or remove estate trustees if circumstances warrant.[8] Keep in mind, the role of an estate trustee is a serious responsibility. The role imputes a ‘fiduciary’ duty, which simply means an estate trustee is obligated to act in the best interests of the beneficiaries. If the actions of an estate trustee fall below this fiduciary standard, the estate trustee may be found personally liable.
In the situation where an individual dies without a will, there is a statutory priority for these appointments, typically favouring the spouse, then children, and so on, but the court has discretion in determining the most appropriate person to appoint.[9]
Notice of Objection
A Notice of Objection is a legal document that someone can file to formally oppose or delay the court process of appointing an estate trustee.
Any person who appears to have a financial interest in the estate, meaning an interest by way of money or property having monetary value, may file a notice of objection at any time before the certificate is issued. The notice must be filed using Form 75.1 and must state the nature of the interest and the grounds for the objection.[10]
The purpose of a Notice of Objection is to alert the Court that there is a dispute about the will or the person applying to administer the estate. For example, a family member or potential beneficiary may believe the will is invalid, that the deceased lacked capacity when it was made. Filing the objection essentially freezes the estate process, preventing any person from gaining control of the assets until the Court can review the issues.
Final Remarks
Probate, now formally referred to as an Application for the Appointment of Certificate of Appointment of Estate Trustee, is more than just a legal formality. It is the process that allows an estate trustee to manage and distribute a deceased person’s assets in today’s modern landscape.
While it can feel daunting, especially during a time of loss, understanding probate when it’s required can help simplify the process. With clear information and guidance, you can navigate probate with confidence, ensuring the estate is administered fairly and in accordance with the wishes of your loved one.
If you have been appointed as an Estate Trustee, consider consulting/ retaining estate administration counsel so they may assist you in ensuring your fiduciary obligations are met.
—
[1] Estates Administration Act, R.S.O. 1990, c. E.22; R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE. (“Rules”)
[2] For ease of reference, we will continue to use the language of probate throughout the blog, but the correct term remains certificate of appointment of estate trustee with a will. In the case of intestacy, it would be certificate of appointment of estate trustee without a will.
[3] Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC), at para 11 citing Macdonell, Sheard and Hull on Probate Practice, 4th ed. by Rodney Hull Q.C. and Ian M. Hull, Toronto, Carswell, 1996, at pp185.
[4] While it is often very frustrating from the perspective of the grieving family members, it is important to know this abundance of caution comes from good intentions. These institutions are extremely risk averse, any misstep on their end could leave them liable to civil suits. Therefore, before handing over access/ possession, their internal policy commonly requires the Estate Trustee to produce a Certificate of Appointment.
[5] Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC), at paras 13-21.
[6] Trustee Act, RSO 1990, c T.23, at section 3.
[7] Public Guardian and Trustee Act, R.S.O. 1990, c. P.51, at section 7.
[8] See James Estate (Re), 2024 ONCA 623.
[9] Rules at R. 74.04(f).
[10] Rules, at R. 75.03.
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Written by: Grant Swedak
Posted on: November 19, 2025
Categories: Commentary
You’ve lost someone close to you, and now the bank says you can’t touch their accounts until you “get probate”.
Most people don’t think about probate until they lose a loved one and then suddenly, it’s the one word that stands between them and accessing the estate. Understanding how probate works can save time, money, and a lot of frustration.
In the estate’s world, we often forget that the language we use on a day-to-day basis tends to be foreign to those encountering these processes for the first time. This blog aims to clarify the key concepts of probate in a straightforward manner.
What is Probate?
Probate is the formal legal process in which a Court validates a deceased person’s will. Once a will is “probated” the estate trustee(s) may begin administering the assets of the estate. In simple terms, probate is the Court’s confirmation that the will is valid and that the named estate trustee has the authority to act. Think of it as the Court’s stamp of approval. While technically, the designated estate trustee can begin managing assets immediately upon the death of the deceased, they will often face practical and administrative barriers without probate.
Although the term “probate” is still a commonly used, the terminology was updated in 1995 via the Rules of Civil Procedure and the Estates Administration Act.[1] Today, the correct term is ‘Certificate of Appointment of Estate Trustee with a Will’.[2] This change also updated the gendered language of executor/ executrix, to estate trustee. While these changes seem like trivial distinctions, it is helpful to know, so that if you find yourself dealing with a legal professional and they mention applying for a certificate of appointment, you know they mean probate, or vice versa.
What Does Probate Do? And Why Bother?
The Application for the Certificate of Appointment of Estate Trustee, or Probate, confirms the estate trustee’s authority to deal with the assets of the deceased person. The estate trustee is the person the deceased has designated to handle the assets of the estate with an ultimate goal of distributing the assets in accordance with the terms of the will.
Although the authority of an estate trustee to administer the assets of a deceased person’s estate comes from the will itself, and takes effect immediately upon the deceased’s death,[3] the probate process is especially necessary in today’s modern landscape. This is because the contemporary ownership of assets is often intertwined with third-party institutions such as banks, dealerships, land title offices, mortgage brokerages, etc. These institutions are understandably reluctant to handover the assets of a deceased individual to just anyone who walks in waving a will around.[4]
It is also important to know that if someone dies without a will, while a similar process occurs, it would not technically be referred to as probate. Rather, when a person dies without a will, or intestate, application may be made for a certificate of appointment of estate trustee without a will.
When is Probate Necessary
Probate is typically necessary because institutions such as banks, land title offices, and third parties require an estate trustee to produce their certificate of appointment as proof before transferring or dealing with estate assets. This is especially true with respect to real estate, bank accounts, and brokerage accounts held in the deceased’s name alone.
The Courts have clarified that while an executor can theoretically act upon the deceased’s death, probate is often required as a matter of internal policy because probate serves as reliable evidence of an individual’s proper authority when dealing with third parties or when bringing or defending actions in court.
As a final note, multiple probate proceedings may be necessary where real property is owned in multiple jurisdictions, whether across Canada or internationally.[5] Foreign probate, however, is quite a complicated topic and as such it is better left for another day but just know its complicated and costly.
Who can be an Estate Trustee?
Generally, the appointment of an estate trustee is wholly the testator’s (person making the will) decision and should be a provision contained within the will. The testator may name any capable person or corporation to act as their estate trustee.
In the absence of a valid appointment, or if the designated estate trustee has pre-deceased the testator or is otherwise unable/ unwilling, the Court may select a suitable person. Alternatively, the Trustee Act allows for any person beneficially interested in the estate to apply.[6] If no private individual is willing or able to act, the Public Guardian and Trustee may be appointed to apply for administration.[7]
In all appointments, the Court’s overriding concern is the proper and impartial administration of the estate, with the discretion to refuse or remove estate trustees if circumstances warrant.[8] Keep in mind, the role of an estate trustee is a serious responsibility. The role imputes a ‘fiduciary’ duty, which simply means an estate trustee is obligated to act in the best interests of the beneficiaries. If the actions of an estate trustee fall below this fiduciary standard, the estate trustee may be found personally liable.
In the situation where an individual dies without a will, there is a statutory priority for these appointments, typically favouring the spouse, then children, and so on, but the court has discretion in determining the most appropriate person to appoint.[9]
Notice of Objection
A Notice of Objection is a legal document that someone can file to formally oppose or delay the court process of appointing an estate trustee.
Any person who appears to have a financial interest in the estate, meaning an interest by way of money or property having monetary value, may file a notice of objection at any time before the certificate is issued. The notice must be filed using Form 75.1 and must state the nature of the interest and the grounds for the objection.[10]
The purpose of a Notice of Objection is to alert the Court that there is a dispute about the will or the person applying to administer the estate. For example, a family member or potential beneficiary may believe the will is invalid, that the deceased lacked capacity when it was made. Filing the objection essentially freezes the estate process, preventing any person from gaining control of the assets until the Court can review the issues.
Final Remarks
Probate, now formally referred to as an Application for the Appointment of Certificate of Appointment of Estate Trustee, is more than just a legal formality. It is the process that allows an estate trustee to manage and distribute a deceased person’s assets in today’s modern landscape.
While it can feel daunting, especially during a time of loss, understanding probate when it’s required can help simplify the process. With clear information and guidance, you can navigate probate with confidence, ensuring the estate is administered fairly and in accordance with the wishes of your loved one.
If you have been appointed as an Estate Trustee, consider consulting/ retaining estate administration counsel so they may assist you in ensuring your fiduciary obligations are met.
—
[1] Estates Administration Act, R.S.O. 1990, c. E.22; R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE. (“Rules”)
[2] For ease of reference, we will continue to use the language of probate throughout the blog, but the correct term remains certificate of appointment of estate trustee with a will. In the case of intestacy, it would be certificate of appointment of estate trustee without a will.
[3] Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC), at para 11 citing Macdonell, Sheard and Hull on Probate Practice, 4th ed. by Rodney Hull Q.C. and Ian M. Hull, Toronto, Carswell, 1996, at pp185.
[4] While it is often very frustrating from the perspective of the grieving family members, it is important to know this abundance of caution comes from good intentions. These institutions are extremely risk averse, any misstep on their end could leave them liable to civil suits. Therefore, before handing over access/ possession, their internal policy commonly requires the Estate Trustee to produce a Certificate of Appointment.
[5] Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC), at paras 13-21.
[6] Trustee Act, RSO 1990, c T.23, at section 3.
[7] Public Guardian and Trustee Act, R.S.O. 1990, c. P.51, at section 7.
[8] See James Estate (Re), 2024 ONCA 623.
[9] Rules at R. 74.04(f).
[10] Rules, at R. 75.03.
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