Wills and Estates
What Is Probate in Ontario and How Long Does It Take
If you have been named as an estate trustee, probate is usually the first hurdle you run into. Banks ask for it, the land registry office asks for it, and nobody explains what it actually is. Here is a plain language walk through of what probate means in Ontario, when you need it, what it costs, and how long it takes. The word itself comes from the Latin probare, meaning to prove or to test.
What probate actually is
Probate is the court process that confirms a will is valid and formally appoints the person who will administer the estate. In Ontario the certificate the court issues is called a Certificate of Appointment of Estate Trustee. Once you have it, banks, investment firms, and the land registry office will accept your authority to collect assets, sell property, pay debts, and distribute what is left to the beneficiaries.
Probate does not change who inherits. The will still decides that. What probate does is prove to third parties that the will is the last valid one and that you are the right person to act.
When can you apply. You cannot apply immediately. Under the Estates Administration Act there is a thirty day waiting period after the date of death before an application can be made.
Do you always need probate
No, and this surprises people. Whether you need probate depends on what the estate holds and who is asking. Financial institutions and the land registry decide when they need the certificate before they will release or transfer an asset.
With limited exceptions, probate is usually required when the deceased owned real estate in their sole name, or held significant bank or investment accounts in their sole name. Probate is often not required for assets that pass outside the estate, and those include the following.
- Property held jointly with right of survivorship, which passes automatically to the surviving owner.
- Registered accounts and insurance with a named beneficiary, such as an RRSP, a RRIF, a TFSA, or a life insurance policy.
- Assets properly held in a trust.
This matters because probate tax is charged only on the assets that actually pass through the estate. Assets that pass outside the estate are not counted.
What probate costs in Ontario
The main cost is estate administration tax, which most people call probate fees. The formula is straightforward. There is no tax on the first 50,000 dollars of the estate, and above that the rate is 15 dollars for every 1,000 dollars, which is 1.5 percent. The estate pays the tax, not you personally, and it is paid when the application is filed.
| Estate value passing through the estate | Estate administration tax |
|---|---|
| $50,000 or less | $0 |
| $250,000 | $3,000 |
| $500,000 | $6,750 |
| $750,000 | $10,500 |
| $1,000,000 | $14,250 |
| $1,500,000 | $21,750 |
On top of the tax you should budget for legal fees, accounting help if the estate is complex, and the cost of valuations such as an appraisal on a home. Estate trustees are also entitled to compensation for their work, which comes out of the estate.
One point that is often missed is that compensation for an estate trustee's work is taxable income, whereas gifts received under the will are not. For that reason close family members who are also beneficiaries often decline or waive estate trustee compensation and take their inheritance instead.
The simplified process for a small estate
If the estate is valued at 150,000 dollars or less, you can use Ontario's simplified small estate process and apply for a Small Estate Certificate instead of going through the full application. It involves less paperwork and is generally faster. The tax works the same way, so the most an estate at that threshold would pay is 1,500 dollars. If more assets turn up later and the total still sits at or under the threshold, you can apply to amend the certificate.
How long probate takes
There are two timelines to keep separate in your head, and mixing them up is why people think probate drags on forever.
Getting the certificate. Court processing commonly runs from a few weeks to a few months. It varies quite a bit by court location and by how busy that court is, and a clean application with no missing documents moves faster than one the court has to send back.
Settling the whole estate. This usually takes closer to a year for a straightforward estate. The certificate is only the starting gun. After that you still have to collect the assets, pay the debts and the final taxes, get a clearance certificate from the Canada Revenue Agency, and then distribute. Estate trustees are generally not expected to distribute in the first year, which is often called the executor's year.
Things that slow probate down include an unclear or damaged original will, missing beneficiary information, assets located outside Ontario, a beneficiary who cannot be found, and any dispute among family members.
What an estate trustee has to do
- Locate the original will and get the death certificate.
- List the estate assets and their value as at the date of death, since the tax is based on that value.
- Notify the beneficiaries as required.
- File the application with the Superior Court of Justice and pay the estate administration tax.
- File the Estate Information Return with the Ministry of Finance within 180 days after the certificate is issued. This is a separate filing from the application and it is easy to miss.
- Collect the assets, pay the debts and taxes, keep records, then distribute what is left.
- Get a clearance certificate from the Canada Revenue Agency before distributing.
Can you plan to reduce probate fees
Sometimes, and it is worth a conversation while you are making or updating your will. Naming beneficiaries on registered accounts and insurance, holding property jointly where it genuinely makes sense, and using trusts in the right circumstances can all reduce the value that passes through the estate. Each of these has trade offs though. Adding an adult child as a joint owner, for example, can expose the property to their creditors and create tax problems, so it is not a step to take casually. Get advice before restructuring anything.
Frequently asked questions
How long does probate take in Ontario?
Court processing of the application commonly takes a few weeks to a few months, depending on the court location and how complete the application is. Settling the whole estate usually takes closer to a year once you account for collecting assets, paying debts and taxes, and obtaining a clearance certificate.
How much does probate cost in Ontario?
The estate administration tax is 15 dollars for every 1,000 dollars of estate value above 50,000 dollars, which works out to 1.5 percent. There is no tax on the first 50,000 dollars. As examples, a 500,000 dollar estate pays 6,750 dollars and a 1,000,000 dollar estate pays 14,250 dollars. Legal and accounting fees are separate.
Do you always need probate in Ontario?
No. It depends on what the estate holds and what the banks and the land registry require. Real estate held in the deceased's sole name and larger accounts in their sole name usually trigger it, while jointly held property and accounts with a named beneficiary often pass outside the estate.
What is a small estate certificate?
It is a simplified probate process for estates valued at 150,000 dollars or less. There is less paperwork than the full application and it is generally faster, although the estate administration tax is calculated the same way.
When can I apply for probate?
Not immediately. Under the Estates Administration Act there is a thirty day waiting period after the date of death before an application for a Certificate of Appointment of Estate Trustee can be made.
Can you avoid probate fees in Ontario?
You can often reduce what passes through the estate by naming beneficiaries on registered accounts and insurance, by holding property jointly where appropriate, or by using a trust. Each option has trade offs, including tax and creditor exposure, so it is worth getting advice before making changes.
I am the executor of an estate and also a beneficiary. Should I take executor's compensation?
It depends on your situation and it is worth getting advice. Estate trustee compensation is taxable income to you, while a gift received under the will is not. For that reason a close family member who is also a beneficiary will often decline or waive compensation and simply take their inheritance, since the after tax result can be better.
Wills and estates
Named as an estate trustee
James Deep Law guides Oakville families through probate and estate administration, with clear advice and fixed fee wills for planning ahead.
This article provides general information about Ontario law and is not legal advice. For advice about your own situation, please contact James Deep Law.