Ontario Wills and Estate Administration Guide 2024

The Estate Administration Framework in Ontario

Ontario estate administration is governed primarily by the Succession Law Reform Act (SLRA), the Estates Act, the Trustee Act, the Estate Administration Tax Act, and Rules 74 and 75 of the Rules of Civil Procedure. The estate trustee (formerly called executor or administrator) holds a fiduciary role — they must act in the best interests of the estate and its beneficiaries, not their own.

The core procedural sequence in Ontario estate administration is: (1) locate the will and qualify as estate trustee; (2) obtain probate if required; (3) gather estate assets; (4) pay debts, taxes, and claims; (5) distribute the estate; and (6) pass accounts if required or challenged.

Will Validity and Formal Requirements

A formal will in Ontario must comply with SLRA s.4: in writing, signed at the end by the testator in the presence of two witnesses, and signed by two witnesses in each other's and the testator's presence. A witness who is also a beneficiary does not invalidate the will, but the witness's bequest is void under SLRA s.12.

Holograph wills under SLRA s.6 are entirely in the testator's own handwriting and signed — no witnesses required. They are valid but more frequently contested on grounds of testamentary capacity or undue influence.

International wills (SLRA s.42) comply with the Convention Providing a Uniform Law on the Form of an International Will — useful for testators with assets in multiple jurisdictions.

Testamentary Capacity

The Banks v Goodfellow (1870) test governs testamentary capacity in Ontario: the testator must understand (a) the nature of making a will; (b) the nature and extent of their property; (c) the natural objects of their bounty; and (d) the act of making a will must be free of mental disorder affecting the dispositions. Medical evidence and witness accounts of the testator's condition at execution are central to capacity challenges.

Undue influence requires more than mere persuasion — the influence must have overpowered the testator's free will. Courts apply a civil burden (balance of probabilities). Unlike gifts inter vivos, there is no presumption of undue influence in will-making — the party alleging it bears the burden.

Probate in Ontario: The Certificate of Appointment

Probate in Ontario is the court process under Rule 74 of the Rules of Civil Procedure by which the Superior Court of Justice certifies the will and the estate trustee's authority. The result is a Certificate of Appointment of Estate Trustee with (or without) a Will.

When Probate is Required

Probate is required whenever a third party — a bank, land registry, brokerage, or life insurer — requires court-certified authority before releasing assets. Key triggers include:

• Real property registered in the deceased's name (Land Titles requires a Certificate for dealings)
• Bank accounts, investment accounts, and securities without designated beneficiaries
• RRSP/RRIF/TFSA without beneficiary designations (estate flows through probate)
• Shares in private corporations (directors typically require probate before transfer)

Assets with named beneficiaries (life insurance, RRSPs, TFSAs with beneficiary designations, joint property with right of survivorship) pass outside the estate and outside probate.

Estate Administration Tax (EAT)

Ontario's Estate Administration Tax (formerly called probate fees) applies at $15 per $1,000 of estate value exceeding $50,000 (no tax on the first $50,000). The estate trustee must file an Estate Information Return within 180 days of the Certificate using Form 1 under the Estate Administration Tax Act — verifying the estate values declared in the probate application. Understating estate value is an offence.

Probate Application Under Rule 74

The application for a Certificate of Appointment of Estate Trustee with a Will (Form 74.4) requires: the original will, an affidavit of execution, the proposed estate trustee's affidavit (Form 74.8), a list of beneficiaries and their addresses, proof of death, and payment of EAT. The court does not investigate the merits of the will — it certifies the formal requirements are met and the applicant is entitled to be estate trustee.

Small Estate Certificate (Rule 74.1): Estates with assets of $150,000 or less may use a simplified small estate application process — a faster, lower-cost alternative to full probate for qualifying estates.

Estate Trustee Duties and Obligations

An Ontario estate trustee is a fiduciary. Core duties include:

1. Asset Gathering and Protection

The estate trustee must immediately identify, secure, and protect estate assets — including cancelling credit cards, notifying financial institutions, and protecting real property. Insurance policies must be maintained; vacant property creates significant liability if coverage lapses.

2. Debt Payment Priority

The estate trustee must pay debts before distributing to beneficiaries. Ontario priority is roughly: (1) secured creditors against their security; (2) funeral expenses; (3) costs of administration; (4) preferred creditors (including CRA for certain taxes); (5) unsecured creditors; (6) dependant support claims (which may take priority over legacies if the estate is insufficient). Personal liability attaches if the trustee distributes assets prematurely and a creditor remains unpaid.

3. Tax Filings

The estate trustee must file: (a) the deceased's final T1 return (to December 31 of death year, or date of death if after June 15); (b) optional T1 returns for rights or things and testamentary trust income; (c) a T3 Trust Income Tax return for any trust year if the estate earns income; and (d) a clearance certificate from CRA before final distribution — without it, the trustee may be personally liable for CRA assessments after distribution.

4. Keeping Accounts

Detailed accounts of all receipts and disbursements are mandatory — these will be the basis for passing accounts if required. A trustee who fails to keep proper accounts will face difficulty justifying compensation and may be ordered to personally bear costs.

Passing of Accounts in Ontario

Passing of accounts is the court-supervised review of the estate trustee's administration under Rules 74.15 to 74.18 and Estates Act s.49. Any interested person — a beneficiary, creditor, or the Public Guardian and Trustee on behalf of an incapable person — can compel a passing of accounts.

The Accounts

The accounts (Form 74.43) present: (a) all capital receipts; (b) all capital disbursements; (c) all income received; (d) all income disbursements; (e) investments held; (f) proposed compensation; and (g) a statement of assets remaining for distribution. Accounts must be comprehensive — omissions invite objections.

Trustee Compensation

Ontario courts traditionally allow estate trustee compensation calculated as 2.5% on capital receipts, 2.5% on capital disbursements, 2.5% on income receipts, and 2.5% on income disbursements — the five-percent guideline from Re Toronto General Trusts Corp v Central Ontario Railway (1905). Modern courts apply a more holistic approach considering the complexity of the estate, the skill required, time spent, and results achieved. The will may specify compensation — courts generally follow those provisions.

Objections and Contested Passings

A beneficiary wishing to challenge the accounts files a Notice of Objection (Form 74.45.1) within 35 days of service of the accounts. Grounds include improper asset valuations, unauthorized expenditures, improper investments, breach of fiduciary duty, and excessive compensation. A contested passing of accounts proceeds to a full hearing before a judge — effectively estate litigation.

SLRA Dependant Support Claims

Part V of the Succession Law Reform Act allows dependants of a deceased Ontario resident to seek support from the estate regardless of the will's terms or intestacy rules. This is a critical limitation on testamentary freedom in Ontario.

Who is a Dependant?

SLRA s.57 defines dependant as: the deceased's spouse (married or same-sex); a parent, child, or sibling of the deceased who was financially dependent on the deceased at death. Common-law partners (not married) are included as spouses for dependant support purposes under the Family Law Act definition incorporated into the SLRA.

The 6-Month Limitation

A dependant support application must be brought within 6 months from the date the Certificate of Appointment is issued (SLRA s.61(1)). This is a strict limitation — courts have very limited discretion to extend it. Missing this deadline is often fatal to a dependant's claim, making early identification of potential dependants essential for estate trustees advising beneficiaries.

Court's Approach

Under SLRA s.62, courts consider: (a) the deceased's legal obligation to support the dependant; (b) the dependant's current circumstances and needs; (c) the estate's size; (d) competing beneficiary claims; (e) corollary relief in any family law proceeding; and (f) agreements the deceased entered. Support may be ordered as a lump sum or periodic payments charged against the estate.

Intestacy Under the SLRA

When a person dies without a valid will, or with a will that does not fully dispose of the estate, Part II of the SLRA governs. The preferential share for a surviving married spouse is currently $350,000 (updated by regulation). After the preferential share:

• If the deceased leaves a spouse and no children: spouse takes everything
• If spouse and one child: residue divided equally (50/50)
• If spouse and two or more children: spouse takes one-third, children share two-thirds equally
• No surviving spouse: estate distributed to children equally

Critical point for common-law spouses: Ontario's SLRA intestacy rules only entitle married spouses to the intestate share. A common-law partner of any length gets nothing on intestacy (unless jointly titled assets exist). Common-law partners may bring a dependant support claim or an unjust enrichment claim — but have no automatic intestate entitlement. This is one of the most significant estate planning vulnerabilities for common-law couples in Ontario.

Estate Administration in Practice: Key Limitation Periods

Ontario estates lawyers must track multiple overlapping time limits:

• Dependant support claim: 6 months from Certificate of Appointment (SLRA s.61)
• Estate Information Return: 180 days from Certificate of Appointment
• CRA clearance certificate: Request before distributing — CRA has 3 years to assess after filing but can assess beyond that for fraud or misrepresentation
• Limitation on debts: General 2-year Ontario limitation period applies to estate claims by creditors (Limitations Act 2002 s.4)
• Will challenges: No specific limitation period in Ontario — but delay in bringing a contested probate application (Rule 75) can bar the challenge on laches grounds

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Frequently Asked Questions

When is probate required in Ontario?

Probate (Certificate of Appointment of Estate Trustee) is required in Ontario when financial institutions, land registries, or third parties require court-certified authority before releasing estate assets. Rule 74.04 governs the application. Estate Administration Tax applies at $15 per $1,000 of estate value over $50,000. Small estates under $150,000 may use the simplified Small Estate Certificate process under Rule 74.1.

What are the estate trustee's duties in Ontario?

An Ontario estate trustee must: gather and protect estate assets; pay valid debts, taxes, and funeral expenses; file the deceased's final T1 return and an estate T3 return if needed; distribute the estate per the will or intestacy rules under the SLRA; keep detailed accounts of all receipts and disbursements; and pass accounts in court if required.

How does the dependant support claim work under the SLRA?

Part V of the Succession Law Reform Act allows a deceased's dependants to apply within 6 months of the Certificate of Appointment for support from the estate. The court considers the deceased's legal obligation to support the dependant and the estate's ability to pay. The 6-month limitation is strict — delay can be fatal to the claim.

What is the passing of accounts process in Ontario?

Passing of accounts is the court approval process for an estate trustee's administration under Rule 74.15-74.18. The trustee prepares detailed accounts. Beneficiaries receive notice and may file objections. A judge reviews the accounts and may approve trustee compensation (usually 2.5% on capital and income receipts and disbursements under Re Toronto General Trusts).

What happens to Ontario estates without a will?

Ontario intestacy is governed by Part II of the SLRA. A surviving married spouse receives a preferential share ($350,000) then shares the residue with the deceased's children. Common-law spouses receive nothing on intestacy under Ontario's SLRA — they must rely on dependant support claims or unjust enrichment.