When someone dies, their affairs do not settle themselves. Bills continue arriving, financial institutions need instructions, and someone has to take legal responsibility for gathering the deceased’s assets, paying their debts, and eventually distributing what remains to the people entitled to it. This process, estate administration, can feel overwhelming for the person appointed to handle it, often at the same time they are grieving a significant loss.
Our guides on how to make a will and power of attorney explain how to plan for these situations in advance. This guide explains what actually happens afterward: what an executor or estate trustee is responsible for, when probate is required and what it involves, how much it costs, and what can go wrong along the way. Whether you have just been named as an executor, are helping settle a family member’s estate, or are simply trying to understand what lies ahead, this guide walks through the process from start to finish.
This guide is a companion to our guides on how to make a will in Ontario and power of attorney in Ontario. Those guides explain how to plan your own estate; this guide explains what happens after someone has died, and how to find a wills and estates lawyer in the GTA who speaks your language.
Meet Our Wills & Estates Lawyers
The Role of the Estate Trustee
The person legally responsible for administering an estate in Ontario is called the estate trustee, commonly known as the executor when named in a will. If the deceased died without a will, the court-appointed administrator performs the same role and is technically also called an estate trustee, though the process of being appointed differs, as explained below.
Being named an estate trustee is not simply an honour; it is a significant legal responsibility with real personal liability attached. An estate trustee has a fiduciary duty to act in the best interests of the beneficiaries and creditors of the estate, to act honestly and in good faith, and to administer the estate with reasonable care and diligence. Someone named as an executor in a will is not obligated to accept the role; they can decline (renounce) before taking any steps to act, though once they begin acting as executor, formally stepping down becomes more complicated and generally requires court involvement.
Dying With a Will vs Dying Without One
If There Is a Will
If the deceased left a valid will, the will typically names one or more executors and sets out how the estate should be distributed. As discussed in our guide on how to make a will in Ontario, a validly executed will governs the distribution of the estate. The named executor applies for a Certificate of Appointment of Estate Trustee With a Will if probate is required (discussed below), which formally confirms their legal authority to act.
If There Is No Will (Intestacy)
If the deceased died without a valid will, Ontario’s Succession Law Reform Act sets out a fixed formula for how the estate is distributed, generally prioritizing a surviving spouse and children, then more distant relatives if there is no surviving spouse or children, and ultimately the Crown if no eligible relatives can be located. This formula does not account for the deceased’s actual wishes, relationships, or family circumstances, which is one of the strongest arguments for having a properly drafted will.
Where there is no will, someone (typically a family member, often the person the intestacy rules would favour) must apply to the court to be appointed as the estate trustee, requesting a Certificate of Appointment of Estate Trustee Without a Will. This process involves additional requirements, including posting a bond in some circumstances (a form of insurance protecting the estate against the administrator’s mismanagement), unless waived by all beneficiaries or otherwise permitted by the court.
What Is Probate and When Is It Required
Probate, formally called obtaining a Certificate of Appointment of Estate Trustee, is a court process that confirms the validity of a will (if one exists) and formally confirms the executor’s or administrator’s legal authority to act on behalf of the estate. Despite common assumptions, probate is not always required. Whether it is needed depends primarily on what the estate actually contains.
When Probate Is Typically Required
- The estate includes real property (real estate) held solely in the deceased’s name, since the land registry system generally requires a Certificate of Appointment before a property can be transferred or sold.
- Financial institutions (banks, investment firms) holding significant assets often require a Certificate of Appointment before releasing funds to the estate trustee, particularly for larger accounts, though policies vary by institution and account size.
- There is a real possibility the will could be challenged or is otherwise unclear, since probate provides a level of court-sanctioned certainty about the estate trustee’s authority.
When Probate May Not Be Required
- Assets held jointly with a right of survivorship (such as a jointly owned home or joint bank account) generally pass automatically to the surviving joint owner outside the estate and outside probate.
- Assets with a named beneficiary, such as RRSPs, RRIFs, TFSAs, and life insurance policies with a designated beneficiary (other than the estate itself), generally pass directly to that beneficiary without going through the estate or probate.
- Very small or simple estates, particularly where the only assets are personal belongings or small bank accounts, may be released by financial institutions without formal probate, depending on the institution’s own policies.
t is common, particularly for estates with real property or significant investment accounts, for probate to be necessary even when the will itself is completely straightforward and uncontested. Probate confirms authority; it does not necessarily mean anything is wrong or contested.
The Estate Administration Tax
Applying for a Certificate of Appointment requires paying Ontario’s Estate Administration Tax (sometimes still informally called probate fees), calculated based on the value of the estate as of the date of death.
| Estate Value | Estate Administration Tax |
| First $50,000 of estate value | No tax |
| Value above $50,000 | Approximately 1.5% of the value above $50,000 |
For example, an estate valued at $800,000 would generally incur Estate Administration Tax of approximately $11,250 (1.5 percent of the $750,000 above the first $50,000 exemption). This tax is paid from the estate at the time the probate application is filed, based on a sworn estimate of the estate’s value, and is separate from any income tax owing by the deceased or the estate. Because this can represent a meaningful cost, some estate planning strategies (such as certain uses of joint ownership, beneficiary designations, and multiple wills, discussed below) are specifically aimed at legitimately reducing the value of the estate subject to this tax, though these strategies require careful legal advice to implement correctly and avoid unintended consequences.
Multiple Wills: A Common Estate Planning Strategy
A specific and well-established Ontario planning technique involves preparing two separate wills: a primary will covering assets that require probate (such as real estate and publicly traded investments), and a secondary will covering assets that generally do not require probate to transfer, most notably shares of a private corporation. Because Estate Administration Tax is calculated only on the value of assets passing under the will submitted for probate, using a secondary will for assets that do not need probate can meaningfully reduce the tax payable. This strategy is most relevant for business owners and those with significant private company holdings, and it must be structured correctly by a lawyer at the time the wills are drafted; it cannot be implemented after death.
The Estate Trustee’s Duties, Step by Step
1. Locate the Will and Make Initial Arrangements
The first steps include locating the original will (if one exists), arranging the funeral (or confirming arrangements already made), and obtaining certified copies of the death certificate, which will be needed repeatedly throughout the process.
2. Secure and Identify the Estate’s Assets
The estate trustee must identify and secure all of the deceased’s assets, including real property, bank and investment accounts, vehicles, and personal property, and take reasonable steps to protect them (for example, ensuring a vacant property is insured and secure) until the estate is settled.
3. Apply for Probate, If Required
If probate is required based on the estate’s assets, as discussed above, the estate trustee (through a lawyer) files the application for a Certificate of Appointment of Estate Trustee, including a sworn estimate of the estate’s value, and pays the applicable Estate Administration Tax.
4. Notify Beneficiaries and Creditors
The estate trustee must notify the beneficiaries named in the will (or, in an intestacy, those entitled under the Succession Law Reform Act) and identify and notify known creditors of the estate. Publishing a notice to creditors is a common practice that helps protect the estate trustee from personal liability for debts that surface after the estate has been distributed.
5. Pay Debts, Expenses, and Taxes
Before any distribution to beneficiaries, the estate trustee must pay the deceased’s outstanding debts, funeral and administration expenses, and taxes, including filing a final personal income tax return for the deceased (sometimes called the ‘terminal return’) covering the period up to the date of death, and potentially one or more subsequent ‘estate’ tax returns if the estate generates income (such as interest or investment gains) during the administration period. The Canada Revenue Agency’s Clearance Certificate, confirming that all tax obligations of the deceased and the estate have been satisfied, is an important protection for the estate trustee before making final distributions, since it limits the risk of being held personally liable for tax debts that surface later.
6. Distribute the Estate
Once debts, expenses, and taxes are paid (or adequately provided for), the estate trustee distributes the remaining assets to the beneficiaries according to the will, or according to the intestacy rules if there is no will. Executors commonly wait a period of time (often around six months to a year from the date of death) before making final distributions, in part to allow the limitation period for certain claims against the estate, such as dependant support claims discussed below, to run, reducing the risk of distributing assets that later need to be recovered from beneficiaries.
7. Prepare Estate Accounts
Throughout the process, the estate trustee should keep detailed records of all estate transactions, income, and expenses. Beneficiaries are generally entitled to receive an accounting of the estate’s administration, and in contested situations, formal court passing of accounts may be required, where the estate trustee’s handling of the estate is formally reviewed and approved by the court.
Executor Compensation
Estate trustees are entitled to compensation for their work administering the estate, though family members often choose to waive this in straightforward estates, particularly where they are also significant beneficiaries. Ontario courts have historically used a general guideline of approximately 2.5 percent of the estate’s capital receipts, 2.5 percent of capital disbursements, and a smaller annual care and management fee for estates administered over an extended period, though this is a guideline rather than a fixed rule, and compensation can be adjusted based on the complexity of the estate and the amount of work actually involved. A will can also specify a particular compensation arrangement for the named executor, which generally governs instead of the general guideline.
Estate Trustee Liability
Because an estate trustee owes fiduciary duties to the beneficiaries and creditors of the estate, they can be held personally liable for losses caused by mismanagement, including distributing the estate before properly accounting for debts and taxes, favouring one beneficiary over another improperly, failing to invest estate assets prudently during the administration period, or otherwise breaching their duties. This liability is one of the most important reasons an executor, particularly of a larger or more complex estate, should retain a lawyer to guide the process rather than attempting to navigate it entirely alone.
Disputes and Challenges
Will Challenges
A will can be challenged on grounds including lack of testamentary capacity (the testator did not have the mental capacity required to make a valid will at the time it was signed), undue influence (someone improperly pressured the testator into making the will a certain way), improper execution (the formal signing and witnessing requirements were not met), or fraud. Will challenges are a form of litigation and can significantly delay the administration of an estate while the dispute is resolved.
Dependant Support Claims
Ontario’s Succession Law Reform Act allows certain dependants of the deceased, including a spouse, former spouse, child, parent, or sibling who was financially dependent on the deceased, to apply to the court for support from the estate if the will (or the intestacy distribution) does not adequately provide for them. This is distinct from a will challenge, since a dependant support claim does not dispute the validity of the will itself, only whether it made adequate provision for a person the deceased had a legal obligation to support. This claim area sometimes intersects with family law; for related context, see our guide on spousal support in Ontario.
Estate Trustee Disputes
Disputes can also arise between multiple estate trustees who disagree on how to administer the estate, or between beneficiaries and the estate trustee over how the estate is being handled. Depending on the severity, these disputes can be resolved through negotiation, mediation, a formal passing of accounts, or in more serious cases, an application to remove and replace the estate trustee.
Why a Wills and Estates Lawyer Who Speaks Your Language Matters
Administering an estate involves navigating court forms, tax obligations, and fiduciary responsibilities, often at the same time the estate trustee is grieving the loss of a family member. Precise communication matters throughout: understanding exactly what the will requires, what debts and taxes must be addressed before distribution, and what personal liability the estate trustee is taking on. Doing this in a second language, on top of an already difficult time, adds real burden.
A wills and estates lawyer who speaks your language can guide an estate trustee through each step clearly, help identify whether probate is genuinely required, and protect the estate trustee from the personal liability that comes with the role. This is particularly relevant for families with assets or beneficiaries in another country, a situation that arises frequently across many of the GTA’s communities. Our Language Guides explain the legal landscape for specific communities across the GTA, including Mandarin, Cantonese, Hindi, Punjabi, Urdu, Tamil, Korean, Italian, Portuguese, Ukrainian, Russian, Hebrew, Farsi, Arabic, Spanish, and French. For a general guide on finding a multilingual lawyer, see our guide on how to find a multilingual lawyer in Toronto.
How to Find a Wills and Estates Lawyer in the GTA
To find a lawyer, visit the main lawyers directory, filter by Wills & Estates and your language, and narrow by location. For advice on choosing and engaging a lawyer, see our guides on questions to ask before hiring a lawyer, the first legal consultation, and what to expect in a retainer agreement. For an explanation of legal fees, see our guide on how much a lawyer costs in Ontario. Always confirm the lawyer is currently licensed by checking our verification process or the Law Society of Ontario’s public register.
Frequently Asked Questions
Is probate always required in Ontario after someone dies?
No. Probate is generally required when the estate includes real property held solely in the deceased’s name or when financial institutions require it to release significant funds, since it formally confirms the estate trustee’s authority. It is often not required for assets held jointly with a right of survivorship, or for assets with a named beneficiary such as RRSPs, TFSAs, and life insurance policies, which generally pass directly to the named beneficiary outside the estate. Whether probate is needed depends on the specific assets involved, and this should be assessed early in the administration process.
How much does probate cost in Ontario?
Ontario’s Estate Administration Tax applies no tax on the first $50,000 of estate value, and approximately 1.5 percent on the value above $50,000. For example, an $800,000 estate would generally incur approximately $11,250 in Estate Administration Tax. This is paid from the estate at the time the probate application is filed, based on a sworn estimate of the estate’s value, and is separate from any income tax owed by the deceased or the estate. Some estate planning strategies, such as multiple wills for business owners, can legitimately reduce the value subject to this tax, but must be set up in advance by a lawyer.
What happens if someone dies in Ontario without a will?
If there is no valid will, Ontario’s Succession Law Reform Act sets out a fixed formula for distributing the estate, generally prioritizing a surviving spouse and children, then more distant relatives if there is no surviving spouse or children. Someone, typically a family member, must apply to the court to be appointed as estate trustee (requesting a Certificate of Appointment of Estate Trustee Without a Will), which can involve additional requirements such as posting a bond. The intestacy formula does not account for the deceased’s actual wishes or specific family circumstances, which is one of the main reasons having a properly drafted will matters.
Can an executor be held personally liable for mistakes in administering an estate?
Yes. An estate trustee owes fiduciary duties to the estate’s beneficiaries and creditors and can be held personally liable for losses caused by mismanagement, including distributing the estate before properly accounting for debts and taxes, failing to obtain a Clearance Certificate from the Canada Revenue Agency before final distribution, or otherwise breaching their duties. This is one of the main reasons an executor, particularly of a larger or more complex estate, should work with a lawyer throughout the process rather than navigating it entirely alone.
Can someone challenge a will or claim they were not adequately provided for in Ontario?
Yes, in two different ways. A will can be challenged on grounds such as lack of testamentary capacity, undue influence, improper execution, or fraud, which disputes the validity of the will itself. Separately, Ontario’s Succession Law Reform Act allows certain dependants, including a spouse, former spouse, child, parent, or sibling who was financially dependent on the deceased, to apply for support from the estate if the will does not adequately provide for them, without necessarily challenging the will’s validity. Both types of claims can significantly delay estate administration and should be assessed with legal advice as early as possible.
Find a Wills and Estates Lawyer in the GTA Who Speaks Your Language
Administering an estate involves significant legal and financial responsibility, often during a difficult and emotional time. Having a wills and estates lawyer who can guide you through the process clearly in your first language protects both you and the estate.
Lawyers Who Speak connects GTA residents with verified, Law Society of Ontario-licensed wills and estates lawyers who speak their language. Search by language and practice area to find the right lawyer for your matter.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Estate administration is highly fact-specific and the law can change. Please consult a qualified wills and estates lawyer licensed in Ontario for advice about your specific situation.