Before the Court Clock Starts: The Work Behind an Ontario Probate Application

When executors ask how long probate takes, they usually mean how long the court will take to issue a Certificate of Appointment of Estate Trustee. That is a fair question. Recent coverage in The Globe and Mail showed that wait times for probate can vary widely depending on where you live, even when there is a Will. In some jurisdictions, 3 to 6 months is the norm.

The court’s processing time is only part of the timeline, though. Before an application can be filed, the executor has to work through a series of legal, factual and financial questions. Some are simple. Others need judgment, evidence and sometimes a separate court process. That early work is where an Estates lawyer and an experienced law clerk often make the biggest difference.
 

Confirming the Will Is Valid

The first job is finding the original Will. A photocopy or scanned version is usually not enough. The original may be in a safety deposit box, at a law firm that has since merged or closed, or among papers at home. Sometimes there is also a codicil (a later amendment to the will), handwritten notes, or more than one version.

Finding the will is not the end of it. Someone also has to ask whether the document is valid as it stands.

• Was it properly signed and witnessed? A formal Ontario will has to be signed in front of two witnesses. If the witnesses cannot be found, other evidence of proper signing may be needed. Currently, an Affidavit of Execution sworn in front of a Notary or Commissioner (usually a lawyer) is required to be produced, as well as a Certificate of Death
• Is it a holograph will? Under the Succession Law Reform Act, a holograph will must be entirely in the deceased’s own handwriting and signed by them. A will that is partly handwritten and partly typed or pre-printed does not fit neatly into either category.
• Does it need to be validated by the court? For deaths on or after January 1, 2022, section 21.1 gives the Superior Court of Justice the power to validate a document that was not properly executed if it sets out the deceased’s testamentary intentions. That is a separate application, and it has to be supported by evidence. Courts have also differed on electronic documents. One decision found that an unsigned Word-file draft could not be validated, while a 2026 decision confirmed the court may have discretion to validate an electronic document. The final determination is not yet universal, so it is best to have any will reviewed for acceptability.
• Are there marks, staples, alterations, or missing pages? These may need to be explained in an affidavit.
• Are there primary and secondary wills? Many Ontario estates use two wills to keep certain assets out of probate. The executor has to know which will is being probated and which assets fall under it.

A question like “Can we probate this?” can turn into a legal analysis before any forms are prepared.
 

Identifying the Estate Trustees

The executor named in the Will may have died, may not want to act, or may live outside Ontario. There may be co-executors who disagree. If there is no Will, or no executor is able to act, someone has to decide who is entitled to apply and whether other people must consent.

Each scenario changes the documents needed. These can include renunciations, consents and sometimes a bond. Getting this wrong at the start can lead to a rejected application weeks or months later.
 

Identifying and Locating Beneficiaries

Beneficiaries have to be identified, and in many cases they must receive notice of the application. That sounds simple until:

• a named beneficiary has died before the deceased
• a gift is left to “my grandchildren,” and nobody has a complete list
• a beneficiary has moved and cannot be found
• a beneficiary is a minor or may not have legal capacity
• there is no will, and the intestacy rules decide who inherits

When minors or people who may lack capacity are involved, additional notice requirements may apply, including notice to the Office of the Children’s Lawyer or the Public Guardian and Trustee. Working out who is entitled, and how they must be notified, is legal work. It is not just administration.
 

Identifying What Goes Into the Application

Executors often assume probate covers “everything the deceased owned.” It does not. Some assets pass outside the estate, such as jointly held property with a right of survivorship, or registered plans and insurance with a named beneficiary. Others fall under a secondary will. Still others belong in the estate even though they are easy to miss, such as:

• old bank or investment accounts
• refunds, deposits and amounts owing to the deceased
• vehicles, collections and personal property of value
• business interests and shareholder loans
• foreign property
• digital assets and online accounts with value

Deciding what goes in, what stays out, and why has consequences for tax, administration and potential disputes later.
 

Valuing the Assets at the Date of Death

Ontario’s Estate Administration Tax is based on the value of the estate at the date of death. There is no tax on the first $50,000. Above that, it is $15 for every $1,000, or part of $1,000. The tax is generally paid when the application is filed. Mortgages registered against Ontario real estate reduce the value, but funeral costs, legal fees and unsecured debts do not.

Some values are easy to confirm, like a bank balance. Others are not:

• Real estate may need an appraisal or a broker’s opinion.
• Private company shares may need a professional valuation.
• Intellectual property and royalty streams, such as book royalties paid in Canada and abroad, raise questions about how to value the right to future payments at the date of death, as distinct from amounts already earned.
• Art, jewellery and collectibles may need a qualified appraiser.

These values matter beyond probate. Within 180 calendar days after the Certificate of Appointment of Estate Trustee is issued, the estate trustee must file an Estate Information Return with the Ministry of Finance, even if no tax is payable. The same values also feed into the deceased’s final tax filings. Consistency across all three matters.
 

Choosing the Right Application

Ontario now has several routes. Estates valued at up to $150,000 may be eligible for a Small Estate Certificate. Larger estates need a Certificate of Appointment of Estate Trustee, with or without a will. More complex situations may call for a different certificate, or for a court order first.

Choosing the wrong route, or later discovering assets that make the estate ineligible for the small estate process, can cost time and money. Practitioners note that problems can arise when assets that disqualify the estate come to light after a Small Estate Certificate has been issued.
 

Preparing and Assembling the Materials

Once the facts are confirmed, the probate application package has to be prepared accurately. Depending on the estate, it may include:

• the application
• the original will and any codicils
• affidavits proving the will was properly executed, or explaining its condition
• proof of notice to beneficiaries
• renunciations or consents
• a draft certificate
• payment of the Estate Administration Tax

Court staff review applications closely. Errors, missing information, inconsistent names or inadequate evidence can lead to the application being returned, and the timeline restarts. Much of what looks like court delay is actually time lost to applications that had to be fixed and refiled.
 

Why Lawyers Are Often Needed

Not every estate needs a lawyer at every step. Ontario provides public guidance, and some straightforward estates can be handled by an organized executor.

But the questions that come up before filing are often legal questions:

• Is this will valid, or does it need court approval?
• Who has the right to apply?
• Who is entitled to notice?
• Which assets belong in the application?
• How should an unusual asset be valued and supported?
• What happens if a beneficiary objects?

An estates lawyer, supported by an experienced estates law clerk, can spot these issues early, gather the right evidence, prepare an application that is more likely to be accepted the first time, and help the executor avoid personal liability. Executors are fiduciaries, and mistakes can have consequences for them personally.

Setting Realistic Expectations

When the court eventually issues the Certificate of Appointment, it can look like the start of the estate administration. In reality, much of the groundwork is already done: the will has been confirmed, the trustees identified, the beneficiaries located, and the assets listed and valued.

For executors, understanding this early in the process helps with planning, prioritizing tasks and explaining to beneficiaries why “probate” often takes longer than they expected, even before the court clock starts.

This post provides general information about Ontario estate law and is not legal advice. Executors should get advice specific to their circumstances. Need some help? Reach out to us at Smartwills.ca.