Ontario

In Ontario, probate is called a Certificate of Appointment of Estate Trustee, issued by the
Superior Court of Justice. It is what proves the estate trustee's authority to banks, the land
registry office and investment firms.

What gets filed

• The original will and any codicils, with an affidavit of execution.
• Form 74A and the supporting court forms, including a sworn estate information return.
• Notice to everyone entitled to a share of the estate.

Estate Administration Tax

Ontario charges Estate Administration Tax on the value of the estate. Since 2020 there is
no tax on the first $50,000, and roughly $15 per $1,000 of value above that. An Estate
Information Return must be filed with the Ministry of Finance within 180 days of the
certificate being issued. Confirm current rates and deadlines on the Ontario government page
before relying on the figures.

What passes outside the estate

Jointly held property with right of survivorship, and registered plans or insurance with a named
living beneficiary, generally pass outside the estate and are not subject to the tax. Multiple
wills — one for assets requiring probate, one for private company shares that do not — are a
recognised Ontario planning technique worth asking a lawyer about.

Timeline

A straightforward Ontario estate commonly takes 12 to 18 months. The estate trustee should not
distribute before the CRA clearance certificate arrives, and should be aware that a dependant's
support claim can be brought within six months of the certificate being issued.

Ontario wills are governed by the Succession Law Reform Act. A formal will must be in
writing, signed at its end by the testator, in the presence of two witnesses present at
the same time, who then sign in the testator's presence.

Witnesses

A witness or a witness's spouse cannot take a gift under the will — the gift is void even
though the will stands. Ontario also permits virtual witnessing by audio-visual link where at
least one witness is a licensee of the Law Society, using identical counterpart copies.

Holograph wills

A will wholly in the testator's handwriting and signed by them is valid in Ontario with no
witnesses at all. Same warning as everywhere: it is valid, and it is also where ambiguity and
litigation come from.

Marriage and separation

Since 2022, marriage no longer revokes an existing will in Ontario, and a separated spouse is
treated much like a divorced one for gifts and appointments. Wills made before 2022 were written
against the old rules — that is reason enough for a review.

Practical points

• Name an alternate estate trustee, and confirm they are willing.
• Consider whether a secondary will for non-probatable assets is worth the drafting cost.
• Record where the original is stored. Ontario has no central will registry that guarantees a
  will is found.

Without a will, Part II of the Succession Law Reform Act distributes the estate — the spouse's
preferential share first, then division with the children — and the court appoints the
administrator.

Yes. Ontario's Trustee Act entitles an estate trustee to "such fair and reasonable
allowance for the care, pains and trouble, and the time expended" as the court approves.

The tariff the courts start from

Ontario practice uses a guideline, not a statute:
- 2.5% of capital receipts and 2.5% of capital disbursements
- 2.5% of revenue receipts and 2.5% of revenue disbursements
- plus a care and management fee of about 2/5 of 1% of the average annual value of the
estate's assets, where the estate is managed over time.

Roughly, that lands near 5% of the estate for a typical administration. The tariff is then
sanity-checked against five factors: the size of the estate, the care and responsibility
involved, the time occupied, the skill shown, and the success achieved. A large but simple estate
often gets less than the tariff.

Getting it approved

Either all beneficiaries consent in writing, or the estate trustee passes their accounts
before the court and asks for approval. Do not simply take the money. Where a beneficiary is a
minor or incapable, consent alone is not enough — the Office of the Children's Lawyer or the
Public Guardian and Trustee gets involved and a passing of accounts is usually required.

If the will fixes an amount

A compensation clause in the will governs if the trustee accepts on those terms.

Tax

Compensation is taxable income and the estate may have to withhold and remit on it. An
executor who is also a residual beneficiary should compare taking a taxable fee against simply
taking their share.

An Ontario estate trustee is reimbursed from the estate for the reasonable expenses of
administering it. That is separate from, and in addition to, their compensation.

Normally claimable

• Funeral, burial or cremation, and a reasonable reception.
• Estate Administration Tax, court filing fees, certified death certificates.
• Legal fees for the certificate application, and accounting fees for the final T1 and any T3.
• Appraisals and valuations required for the estate information return.
• Carrying costs on estate property until sale: insurance, property tax, utilities, security,
  maintenance, snow and lawn care.
• Cleaning, clearing, storing and shipping estate contents.
• Travel on estate business at a reasonable rate, including mileage and parking.
• Postage, couriers, bank charges, title searches, bond premiums where a bond is required.

Normally not claimable

• The executor's lost income, meals near home, or personal expenses.
• Costs run up for one beneficiary's convenience rather than the estate's benefit.
• Renovations that go beyond preparing a property for sale.
• Anything without a receipt.

The practical rule

Open an estate bank account as soon as the certificate is issued and run everything through
it. Keep a dated log of time and mileage from day one — reconstructing it two years later, in
front of a beneficiary who is unhappy, is a bad position to be in.

Ontario estates are usually administered by a family member, and that is fine for most. A trust
company or a lawyer as estate trustee earns its cost in specific situations.

Consider a professional when

• The estate contains an operating business, farm, or a portfolio of rental property.
• A will challenge or a dependant's support claim looks likely.
• A beneficiary is a minor or incapable, meaning a trust that runs for years and mandatory
  involvement of the Children's Lawyer or the Public Guardian and Trustee.
• The intended trustee lives outside Ontario — a non-resident estate trustee will usually have
  to post a bond, which can be expensive or unobtainable, and creates tax complications.
• Assets sit in several provinces or countries.
• The family is already in conflict, and appointing one sibling would guarantee more of it.

Cost

Trust companies charge a negotiated percentage, broadly comparable to the tariff compensation an
individual trustee would take, often with a minimum annual fee. Get the schedule in writing.

Middle ground

Most Ontario estates are handled well by a family trustee who retains a lawyer and an
accountant at the estate's expense. Alternatives include appointing a family member and a trust
company jointly, or naming a professional as the alternate.

An appointed trustee who does not want the job can renounce, but only before they start
dealing with the estate's assets. Once they have intermeddled, they are in.