If you've been named as an estate trustee in someone's will, you're probably wondering: do I actually need to go through probate? The answer isn't always straightforward, and understanding when you need a Certificate of Appointment of Estate Trustee can save you both time and money. This article helps to understand whether probate is required, but remember, we can't give any legal advice without knowing the specific facts of your case.
Instead, this is meant as a rough guide to common issues. It is not legal advice. Call us or reach out directly if you would like advice about your particular situation.
In Ontario, "probate" refers to obtaining a Certificate of Appointment of Estate Trustee with a Will from the Ontario Superior Court of Justice. This legal document proves your authority to act on behalf of the estate and provides protection if the will is later challenged.
Here's an important point many people don't realize: your authority as estate trustee begins the moment the person dies, not when you receive the certificate. The will itself grants you this power. The certificate simply proves that authority to banks, government agencies, and other institutions.
Not every estate requires probate. You may be able to avoid this process entirely if:
The estate is small. Financial institutions often waive the probate requirement for modest estates. Most banks use a threshold between $20,000 and $30,000, though this varies by institution.
Everything goes to a surviving spouse. When the deceased's spouse inherits the entire estate and is also the estate trustee, many institutions will process the transfer without requiring probate—especially if the total value is under $200,000 (Ontario's preferential share amount for intestate estates).
Assets pass outside the estate. Life insurance policies, RRSPs, RRIFs, and TFSAs with named beneficiaries don't require probate because they transfer directly to those beneficiaries.
Joint ownership applies. Bank accounts and real estate held jointly with right of survivorship automatically pass to the surviving owner without going through the estate.
There are situations where you cannot avoid obtaining a Certificate of Appointment:
Real estate in the deceased's sole name. If property is registered only in the deceased's name (not jointly with someone else), you'll virtually always need probate to transfer or sell it.
Multiple beneficiaries exist. When several beneficiaries are named in the will and not all are acting as trustees, financial institutions typically require probate—even for smaller estates.
Large bank accounts or investments. If the deceased had accounts exceeding $20,000-$30,000 at financial institutions, expect to need a certificate. Banks use their own policies to determine these thresholds.
Disputes or complexity. If there's any possibility of a will challenge, questions about the testator's capacity, or competing claims to the estate, getting a certificate provides crucial legal protection.
Here's something many Ontario estate trustees don't know about: you can use two separate wills to significantly reduce Estate Administration Tax.
Ontario charges $15 for every $1,000 of estate value over $50,000. For a large estate, this adds up quickly. However, certain assets—particularly shares in private corporations—can often be transferred without a certificate.
By creating a "primary will" for assets requiring probate (like real estate and bank accounts) and a "secondary will" for assets that don't (like private company shares), you only pay tax on the primary will's assets. For business owners, this strategy can save tens of thousands of dollars.
The Ontario courts have confirmed this approach is legal, and current application forms specifically accommodate limited certificates for estates using multiple wills.
Even without your certificate, you're not powerless. As the named estate trustee, you can immediately:
These actions are not only permitted—they're often necessary to prepare your probate application.
Some financial institutions will release funds without probate if all beneficiaries sign an indemnity agreement. This document essentially makes everyone promise to reimburse the institution if problems arise later.
While this sounds appealing, consider carefully: gathering signatures from all beneficiaries can be challenging, and the time spent coordinating this may exceed the time needed to simply obtain a certificate. Additionally, many institutions won't offer this option unless the estate is quite small or goes entirely to a spouse.
Before deciding whether to pursue probate, ask yourself:
Estate administration carries significant personal liability. If you distribute assets incorrectly, fail to pay legitimate creditors, or miss important tax deadlines, you could be held personally responsible for the consequences.
The decision about whether to obtain probate—and how to structure your application if you do—has lasting implications for the estate and your own financial protection. This is exactly the kind of situation where experienced legal counsel makes the difference between a smooth administration and costly mistakes.
At Sheard Law, we help Ontario estate trustees navigate the probate process with confidence. We can assess your specific situation, advise on whether probate is necessary, and guide you through the application if needed.
Call or email us today for a consultation
Whether you're dealing with a straightforward estate or facing complexity, having knowledgeable legal support protects both you and the beneficiaries you're serving.
This article provides general information about Ontario estate law and should not be considered legal advice for your specific situation. Estate administration requirements vary based on individual circumstances.
