Imagine this situation: A client calls my office in a panic. Her mother has just passed away. The mother had a will. She had named my client as the executor. Everything was in order, or so my client thought.
Then the bank asked for the Certificate of Appointment of Estate Trustee With a Will. The investment company said they couldn’t release the investment funds without it.
My client didn’t know what that certificate was. She had never heard of it. And she definitely didn’t know she’d need a lawyer and a court application to get it.
That certificate is what most people mean when they say “probate.”
It’s one of the most misunderstood parts of estate law in Ontario. This post explains what it is, what it costs, how long it takes, and when you might be able to avoid it.
What Probate Actually Means in Ontario
Probate is the legal process where an Ontario court reviews a will and confirms two things:
- That the will is valid.
- That the person named as executor (called the estate trustee in Ontario) has the legal authority to act on behalf of the estate.
When the court is satisfied, it issues a document called a Certificate of Appointment of Estate Trustee With a Will. That certificate is the proof that banks, land registry offices, investment companies, and other institutions need before they’ll release assets or transfer property.
Without it, many institutions will refuse to cooperate. They’re protecting themselves. If they release money to the wrong person, they could be held liable. The certificate gives them the legal cover to act.
The word “probate” is informal. You won’t find it in the Ontario legislation. The official term is the Certificate of Appointment of Estate Trustee. But everyone, including most lawyers, just says probate.
What About When There Is No Will?
If someone dies without a will, a family member can still apply to the court for authority to administer the estate. The court issues a Certificate of Appointment of Estate Trustee Without a Will.
The process is similar, but there are extra steps. The applicant has to show that they are the appropriate person to act, usually based on their relationship to the deceased. Ontario’s Succession Law Reform Act sets out the order of priority.
The estate is then distributed according to Ontario’s intestacy rules, not according to anyone’s wishes. That’s why I encourage every client to make a will. The rules of intestacy are blunt. They don’t consider your family’s circumstances, your relationships, or what you actually want.
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What Does Probate Cost in Ontario?
The main cost is the Estate Administration Tax, which is the provincial fee charged when a Certificate of Appointment is issued. The rate is set by the Estate Administration Tax Act.
Here is how it works:
The first $50,000 of estate value is exempt. Thereafter the tax is $15 for every $1,000 (or part of $1,000). There is no cap.
To put that in plain terms:
- An estate worth $200,000 pays about $2,250 in probate tax.
- An estate worth $500,000 pays about $6,750.
- An estate worth $1,000,000 pays about $14,250.
- An estate worth $2,000,000 pays about $29,250.
That’s just the government fee. On top of that, there are legal fees for preparing and filing the court application, which vary depending on the complexity of the estate. I’m upfront with clients about what those fees will look like before we begin.
How Long Does Probate Take?
This is the question every executor asks first. The honest answer is that it depends on the estate and the municipality where the deceased resided, but here’s a general picture.
Once the application is filed with the Ontario Superior Court of Justice, the court typically takes anywhere from a few weeks to several months to issue the Certificate. In the Peterborough area, straightforward applications are often processed within a few weeks to a few months. More complex estates, or estates where the court has questions, or outside of Peterborough can take significantly longer.
Before the application can even be filed, the executor needs to gather information and provide to our office. That means:
- getting an original death certificate
- locating the original will (if not with our office)
- identifying all the assets and their values
- obtaining all of the contact information for all of the beneficiaries
In my experience, this preparation stage often takes longer than the court process itself. Our estate administration checklist walks executors through each of these steps in order.
A well-organised estate, where the will is easy to find and the assets are documented, moves through probate much faster. An estate where no one knows what accounts existed, or where the original will has gone missing, can stall for months.
When Is Probate Required?
Ontario law does not always require probate. Whether you need the Certificate of Appointment depends on what kind of assets the deceased held and how they were held.
In general, probate is required when the estate includes real property (a house, a cottage, a farm) that was held in the deceased’s name alone. The land registry office will generally not transfer the property without the Certificate.
Banks and financial institutions set their own thresholds. Some will release modest account balances without probate. Others require the Certificate regardless of the amount. There is no single rule.
Probate is not required for assets that pass outside the estate. That includes jointly held property (with right of survivorship), RRSPs and TFSAs with a named beneficiary, life insurance with a named beneficiary, and pensions with a designated survivor.
I’ve written separately about how beneficiary designations work and why getting them right matters so much. If you have registered accounts or life insurance, that post is worth reading.
Can You Avoid Probate in Ontario?
There are legitimate strategies for reducing the size of the estate that passes through probate. I use some of them regularly in my practice. But they require careful planning, and they’re not right for everyone.
Naming beneficiaries on registered accounts and insurance policies is the most straightforward approach. As I mentioned, those assets skip probate entirely.
Joint ownership is another common tool. If you hold your home jointly with your spouse (with right of survivorship), the home passes to the survivor automatically, outside the estate. But adding a child to a property title to avoid probate is a different matter. It can trigger capital gains tax, and exposure to the child’s creditors. I’ve seen this go wrong more often than it goes right.
Some clients ask about multiple wills, sometimes called a “dual will” strategy. The idea is to have one will for assets that require probate and a second will for assets that don’t, such as shares in a private company. This can significantly reduce the Estate Administration Tax. It’s a legitimate approach, but it adds complexity and it has to be drafted very carefully to work properly.
The key point is that probate avoidance should be part of a broader estate plan, not a standalone goal. Cutting the probate tax by $5,000 doesn’t help if the strategy creates a $50,000 problem somewhere else.
What the Executor Needs to Know
If you’ve been named as an executor in someone’s will, here are a few things worth knowing before the time comes.
- You are personally responsible for managing the estate properly. That means paying debts, filing final tax returns, and distributing assets to the right people. If you distribute the estate before paying a creditor, you could be personally liable for the debt.
- You don’t have to accept the role. Being named in a will doesn’t oblige you to serve. If you’re not comfortable with the responsibility, you can renounce the appointment before you start acting.
- You are entitled to compensation. Ontario’s courts generally allow estate trustees a fee of up to 2.5% of the estate’s capital, 2.5% of the revenue. These are guidelines, not guarantees, and they depend on the work involved.
My advice to every executor is the same. Talk to a lawyer before you start writing cheques or signing anything. A short meeting at the beginning can save months of trouble later.
How I Help
I help executors and families in Peterborough, the Kawarthas and Ontario navigate the probate process from start to finish. That includes preparing the court application, filing the required documents, communicating with financial institutions, and advising on the executor’s duties throughout the administration.
I also help people plan ahead. A well-drafted will that accounts for beneficiary designations, joint ownership, and the probate implications of each asset can save a family a great deal of money, time, and stress.
If you have questions about probate, or if you’re an executor who needs help getting started, I’m happy to have a conversation. You can call my office at (705) 749-0628 or book a consultation through our website.
Barry W. Bussey, Ph.D. (Leiden), has practised law for over 30 years. During that time, he served for ten years as Director of Legal Affairs for a national charity-sector association, argued cases at every level of the judiciary, including five times before the Supreme Court of Canada, and taught as an adjunct law professor. He practises real estate, wills and estates, charity, and non-profit law in Peterborough with Bussey Ainsworth.
This article is for general information only and does not constitute legal advice. Every estate is unique. Please consult with a lawyer before making decisions about probate or estate administration.
