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FREQUENTLY ASKED QUESTIONS ABOUT ESTATES


Q.1 Where do I file an application for " letters probate" or "letters of administration"?

An application for "probate" (now called a certificate of appointment of estate trustee with a will) or "administration" (now called a certificate of appointment of estate trustee without a will) is filed at the Superior Court of Justice located in the county or district where the deceased had his or her permanent residence. If the deceased had no permanent residence in Ontario, the application is filed at the Superior Court of Justice in the county or district where the deceased's property is located. A list of court addresses may be found at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/cadaddr.asp.

Q.2 What is a certificate of appointment of estate trustee?

A certificate of appointment of estate trustee with a will is a document issued by the court that proves the authority of the estate trustee (formerly called an executor) to administer the provisions of the deceased's will.

A certificate of appointment of estate trustee without a will is a document granted by the court that gives authority to the estate trustee (formerly called an administrator) to manage and distribute the estate of the deceased who died without having made a will.

Q.3 Is it necessary to obtain a certificate of appointment of estate trustee in all cases?

No. It depends upon the type and nature of the estate assets to be administered, including whether or not the deceased had a will. A lawyer is in the best position to provide legal advice about whether or not it is necessary to obtain a certificate of appointment of estate trustee.

Q.4 Can court staff give me advice about filing an application for a certificate of appointment of estate trustee?

Neither the Attorney General nor Ministry officials including court staff have the authority to provide legal advice or to comment on private legal matters. A lawyer is in the best position to give advice about legal rights and responsibilities in relation to estate matters.

If you do not have a lawyer, you may wish to contact the Lawyer Referral Service operated by the Law Society of Upper Canada. The Lawyer Referral Service will provide the name of a lawyer who practices estates law. The lawyer will provide a free one half-hour consultation. The telephone number for calls from Ontario is 1-900-565-4577. There is a fixed charge of $6.00 for each telephone call to use this service. For calls from outside Ontario the telephone number is 416-947-3330. Advise the operator who answers that the call is from outside Ontario.

Q.5 What is the role of court staff in processing an application for a certificate of appointment of estate trustee?

Applications for certificates of appointment of estate trustee are processed by Ministry of the Attorney General court staff who perform the duties of an estate registrar in the Civil Office of the Superior Court of Justice. These duties are prescribed by law. Staff must review each application to confirm that the application and all accompanying documents are complete and comply with the Rules of Civil Procedure (the rules of court) and other applicable legislation.

If staff have concerns about the application or accompanying materials, the application must be referred to a judge for direction. The judge may require further materials to be filed or steps taken by the personal representative in relation to the application. The Rules of Civil Procedure may be found at the following website: http://www.e-laws.gov.on.ca/DBLaws/Regs/English/900194a_e.htm. The Rules applicable to estates are rules 74 and 75.

Q.6 Where can I obtain an application form for a certificate of appointment of estate trustee either with a will or without a will?

At the present time, the Ministry's Internet site does not provide these forms. You may wish to contact a supplier of legal forms listed in the Yellow Pages under "Legal Forms" to obtain the necessary forms. An electronic version of the content of forms under the Rules of Civil Procedure can be found at the following website: http://www.ontariocourtforms.on.ca/english/forms/civil/index.jsp. For more information about format standards for court documents, see Rule 4.01 of the Rules of Civil Procedure at: http://www.e-laws.gov.on.ca/DBLaws/Regs/English/900194a_e.htm.

Q.7 Do court estate documents for filing have to be typewritten?

The certificate of appointment of estate trustee must be printed and typewritten. This ensures that there is no question about the content of a certificate of appointment of estate trustee that is issued by the Superior Court of Justice.

Other court estate documents may be handwritten, so long as (1) they are legible, and (2) a printed copy of the form in accordance with the required format is used.

All court documents whether printed, typewritten or written must meet the requirements of the Rules of Civil Procedure relating to the standards for format. This includes spacing, margins, print size and quality of paper.

Q.8 What is a bond?

A bond protects the beneficiaries and creditors of the estate in the event of improper administration of the estate assets. It is posted with the court by the estate trustee as security for the collection, administration and accounting of the assets of the deceased's estate. A bond is required under the Estates Act and the Rules of Civil Procedure in three situations (with certain limited exceptions):

  1. Before an estate trustee obtains a certificate of appointment of estate trustee without a will;
  2. Before an estate trustee obtains a certificate of appointment of estate trustee with a will where the estate trustee is not named in the will; and
  3. Before an estate trustee obtains a certificate of appointment of estate trustee with a will where the estate trustee is named in the will but is not resident in Ontario, or in a province or territory of Canada, or in a Commonwealth country.

Q.9 What is a surety?

There are two types of surety: (1) a personal surety who makes him or herself personally responsible for payment in the amount of the bond should the estate trustee fail to properly administer the assets of the estate; and (2) an insurer licensed in Ontario to write surety and fidelity insurance who acts as surety and who provides a bond for a fee.

A personal surety must be an Ontario resident and cannot be a minor or a solicitor. Two personal sureties are required where the value of the estate is more than $100,000. One personal surety is required where the value of the estate is $100,000 or less. The Estates Act provides that the amount of the bond shall be double the amount or value of the estate.

Where the surety is an insurer, the amount of the bond shall be equal to the amount or value of the estate. A list of licensed insurers may be found at: http://www2.fsco.gov.on.ca/Misc/fideng.htm.

Q.10 How do I find out about the status of my estate application?

Inquiries about the status of an estate application that has been filed with the Superior Court of Justice should be directed to the civil office of the Court (in Toronto, to the Estates Office). A list of court addresses may be found at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/cadaddr.asp.

Q.11 What is the Ministry of the Attorney General doing to ensure that the time taken for issuing certificates of appointment of estate trustee is consistent across Ontario?

The Ministry has a province-wide standard of 15 business days for processing certificates of appointment of estate trustee with or without a will, once the application and accompanying materials are complete and judicial direction, if required, has been obtained.

Q.12 What is the estate administration tax?

The estate administration tax has replaced probate fees since December 1998. The tax must be paid when the personal representative files an application for a certificate of appointment of estate trustee with the Superior Court of Justice. There are no other court fees payable for filing the application. Cheques for paying the estate administration tax are made payable to the Minister of Finance.

In certain circumstances, the estate administration tax paid may be calculated on an estimated value of the estate. In these circumstances, the personal representative must:

  • File an affidavit as to the estimated value of the estate;
  • Pay the estate administration tax on the estimated value; and
  • Provide an undertaking to file, within six months, a sworn/affirmed statement of the total value of the estate, and to pay the balance of any additional tax owing (if any).

On an order of a judge, in accordance with the criteria set out in the Estate Administration Tax Act, 1998 (including the posting of a bond), payment of the estate administration tax may be deferred to a specific date and the certificate of appointment of estate trustee may be issued.

Q.13 How do I calculate the amount of the estate administration tax?

The estate administration tax is calculated on the total value of the deceased's estate wherever situated, that is sworn/affirmed to on the application for a certificate of appointment of estate trustee under "Value of Assets of Estate". The formula for calculating the amount of the tax is set out in the Estate Administration Tax Act, 1998 as follows:

  • $5 for each $1,000, or part thereof, of the first $50,000 of the value of the estate, and
  • $15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000.

The Estate Administration Tax Act, 1998 may be viewed at: http://www.e-laws.gov.on.ca/home_E.asp?Lang=eng. Click on "Statutes and Regulations", scroll down to "E", and click on "E" to find the Act.

Q.14 How can I find a copy of a deceased person's will?

Where a deceased has left a will and the deceased's personal representative has filed an application for a certificate of appointment of estate trustee with a will at the Superior Court of Justice, any person may inspect the file and obtain a copy of the will upon payment of the prescribed fee, unless a judge of the court has ordered the file sealed. The application is filed at the court location in the county or district where the deceased resided. Fees payable to access a court file and to obtain a photocopy of a filed document may be viewed on the Ministry's website at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/default.asp#fees.

Q.15 What if I do not know whether or not an application for a certificate of appointment of estate trustee was filed or if I am not sure in which court office the application was filed?

You may contact the civil office of the Superior Court of Justice (in Toronto, the Estates Office) located in the county or district where the deceased had his or her permanent residence in writing, to request that a search for the estate application file be conducted. If you are not sure of the court location where the application for a certificate of appointment of estate trustee may have been filed, you may contact the civil office at any Superior Court of Justice location in writing to request that a provincial search for the file be conducted.

You should provide the deceased's full name, address and date of death. You will be advised of the appropriate fee that is payable for the search and for any copies of filed documents. Court office addresses may be found at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/cadaddr.asp Court offices may not be contacted by e-mail.

If no application for a certificate of appointment of estate trustee is found, you may wish to contact a lawyer who will be able to give you the appropriate advice in the circumstances.

Q.16 How do I apply for death benefits?

The matter of death benefits falls within the jurisdiction of the federal government. For information on death benefits, you may contact Human Resources Development Canada (HRDC) at 1-800-277-9914. An operator will be able to refer you to your local HRDC branch and provide you with more information on death benefits.

July 2005