Probate Applications

Probate applications are now referred to as applications for a Certificate of Appointment of Estate Trustee and related terms are explained below.

• "certificate of appointment of estate trustee" means letters probate, letters of administration or letters of administration with the will annexed;
• "estate trustee" means an executor, administrator or administrator with the will annexed;
• "estate trustee during litigation" means an administrator appointed pending an action;
• "estate trustee with a will" means an executor or an administrator with will annexed;
• "estate trustee without a will" means an administrator;
• "objection to issuing of certificate of appointment" means a caveat;
• "will" includes any testamentary instrument of which probate or administration may be granted.

Certificates of appointment of estate trustee are granted by the Court where a person is named in the will as the Executor, or to the next of kin on intestacy, or to a Trust Company or other.

Certificates of Appointment of Estate Trustee During Litigation are issued to a Trust Company, or other who has agreed to act as an Estate Trustee During Litigation. The Certificates are obtained to access any property that the deceased held in their name only and confers the authority of the court to financial institutions to release the assets to the named estate trustee under the Certificate of Appointment.

Effective January 1, 2020, the Ontario government provided some small relief to Estates by amending the Estate Administration Tax Act, and removing the tax payable on the first $50,000 of the value of Estate assets reported on an Application for Certificate of Appointment.  

Previously, Estate Administration Tax (“EAT”) was calculated at .5% or $5.00 per thousand, for the first $50,000 and 1.5% or $15.00 per thousand for any value reported over $50,000.  Therefore, any Estate (for which an Application for Certificate of Appointment is required), where the value of the Estate is $50,000 or less, will no longer have to pay any EAT.   For all other Estates where the value of the Estate is over $50,000, no tax will be calculated on the first $50,000 but the tax remains at 1.5% for the value of assets reported over $50,000.

The government also provided little time relief to Estates; however, amendments have alleviated some of these time constraints. Prior to January 1, 2020, the time for filing an Estate Information Return (“EIR”) was only 90 days from the date of the grant of Certificate of Appointment, but this has now been doubled to 180 days.  The time required to file an amendment to an EIR was previously 30 days but has now been extended to 60 days.

Ontario Regulation 110/21 provided changes for Estates with a value of $150,000.00 or less by introducing a Small Estates Certificate, which aims to make the application process simpler for an Estate with a value of $150,000.00 or less.

Probate applications are generally to be made in the jurisdiction where the deceased was a resident of.

Most financial institutions require a Certificate of Appointment of Estate Trustee before they will release assets in the deceased’s name. It is important to find out from the financial institution what their specific practice and procedural requirements are.

As of April 1, 2024, Regulation. 388/23 was filed to amend the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and forms for Estate Court proceedings in the Superior Court of Justice to introduce the new Form 74G. This Form, amongst other things, reduces the number of forms that must be filed to demonstrate the consent of beneficiaries and renunciation of persons who are entitled to act as estate trustees.

The Courts usually take 3-8 weeks, or longer after an application is made to issue a Certificate, unless the application becomes contentious, and has to be put before a Judge in open court.

We assist in all types of applications to the court: Certificates of Appointment of Estate Trustee With, or Without a Will; Certificates of Estate Trustee During Litigation; Certificates of Appointment of Succeeding Estate Trustee; Resealing or Ancillary Certificate of Appointment.

Resources:

Estate Administration Tax Act, 1998, S.O. 1998, c. 34, Sched found at: SO 1998, c 34, Sch | Estate Administration Tax Act, 1998 | CanLII

Ontario Regulation 310/14 found at: http://canlii.ca/t/54502

Succession Law Reform Act, RSO 1990, c S.26 found at: http://canlii.ca/t/54bk2

Estates Administration Act, RSO 1990, c. E.22, found at ontario.ca/laws/statute/90e22

Estates Act, R.S.O. 1990, c. E.21, found at ontario.ca./laws/statute/90e21

Ministry of Finance Estate Administration Tax found at: https://www.ontario.ca/page/estate-administration-tax

WEL blog: Important Changes to Ontario’s Probate Application Forms

WEL blog: Recent Changes to the Estate Court Forms and Court Rules

Consolidated Practice Direction Concerning the Estates List for the Toronto Region

Full Consolidated Practice Direction for the Toronto Region

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation Partners.