Overview

The assets and liabilities that you own when you die is called your estate.

A Will is a legal document that sets out how you want your estate distributed after your death and who you want to carry out your directions.

What assets are included in your estate depends on how they are owned. If you have money and property that are jointly owned with another person, or have a designated beneficiary (for example, an insurance policy or joint bank account), it may pass directly to the survivor on your death. In addition, an eligible person who was dependent on you prior to your death can make a claim for that money or property if they need it to support themselves after your death.

You are not legally required to have a Will, but it is strongly recommended that you have one prepared. If you die without a Will, your estate will be distributed in accordance with Ontario's Succession Law Reform Act and someone would need to apply to the court to ask for authority to administer your estate.

Your Will only takes effect after you die. A Power of Attorney is a legal document in which you appoint a person to make decisions for you while you are alive in case you are unable make decisions for yourself because you are not mentally capable. Powers of Attorney end when you die. Learn more about Powers of Attorney.

Find a Will

When a person dies, the first step is to find the Will (if one was prepared). A Will might be found either:

  • in the deceased person’s home
  • in a safety deposit box
  • at the office of the deceased’s lawyer
  • through a private Will registry
  • in a court record

To find the deceased’s Will, or find out who may be acting as an estate trustee of an estate, you can:

  • contact the deceased’s lawyer
  • contact the deceased’s relatives or friends
  • search online Will registries
  • search the court records in the Ontario courthouse closest to the deceased’s home.

If the deceased did not live in Ontario, contact the courthouse in the location where they owned Ontario property. A fee must be paid to view the court file.

You can also search the Archives of Ontario for estate court files which were started before 1977.

Learn more about how to find a Will in court records.

The role of an estate trustee

An estate trustee is a person who is responsible for dealing with an estate.

The estate trustee is named in the Will or appointed by the court where the deceased did not have a Will. There may be one or more estate trustees named in a Will.

Estate trustees are responsible for carrying out the wishes of the deceased person set out in the terms of the Will (if there is one) and administering an estate in accordance with the law.

A person named as an estate trustee in a Will is not required to act as the estate trustee. If they decide to act, they are responsible for:

  • winding up the affairs of the deceased
  • paying taxes, bills and any other debts
  • collecting the estate assets and distributing the residue of the estate to those who are entitled to it (for example, the remainder after all liabilities are paid)

If the named estate trustee (or alternative trustee) in a Will declines to act or cannot act, then the beneficiaries may nominate another person to act as estate trustee.

An estate trustee can be appointed by the court if:

  • there is no Will
  • there is no estate trustee named in a Will
  • the estate trustee named in a Will asks the court to confirm the validity of the Will and their appointment

Learn more about what an estate trustee does and how to choose an estate trustee.

Apply for probate (Certificate of Appointment of Estate Trustee/Small Estate Certificate)

Probate is a procedure to ask the court to:

  • give a person the authority to act as the estate trustee of an estate
  • confirm the authority of a person named as the estate trustee in the deceased’s Will
  • formally approve that the deceased’s Will is their valid last Will

Probate is not always required in order to administer an estate. The type of assets in the estate usually determine whether an estate should be probated. If the deceased owned real property or assets held by a financial institution, the estate normally has to be probated. Before starting an application for probate, you may want to determine whether the person or institution holding estate assets, or requiring a payment or action by the estate, requires a certificate of appointment of estate trustee or a small estate certificate (“probate certificate”).

Learn how to apply for probate of an estate and learn when probate may be required.

Learn how to apply for probate of a small estate (valued at $150,000 or less).

Apply for death benefits

The estate or other eligible individuals may be entitled to Canada Pension Plan death benefits. Death benefits are administered by the federal government. Find more information at Canada Pension Plan Death Benefits, or call Service Canada at 1-800-277-9914.

How an estate is distributed

How an estate is distributed depends on whether or not the person who died left a valid Will.

Distribution of an estate with a Will

When a person has a valid Will when they die, their estate is normally distributed according to the directions in the Will, once the assets have been liquidated and the funeral and burial expenses and any debts have been paid.

Distribution of an estate without a Will

When a person does not have a valid Will when they die, it is called an intestacy. When this happens, Ontario's Succession Law Reform Act sets out how the estate is distributed. In general, when a person dies without a Will, the people who can inherit their estate include their spouse and closest next-of-kin. A common law spouse does not inherit under the Succession Law Reform Act.

If you believe that you are entitled to inherit all or part of an estate, you can find out whether an estate trustee was appointed by the court to administer the estate by contacting the court office where the deceased lived or held property.

Learn more about making a claim against the estate or challenging a will.

Beneficiaries under the age of 18

The Office of the Children’s Lawyer may act on behalf of children under the age of 18, or unborn persons in court cases, where they have an interest in an estate or trust. You will need to serve the Office of the Children’s Lawyer when applying for a certificate of estate trustee if any beneficiaries of the estate are under the age of 18.

Learn more about the role of the Office of the Children’s Lawyer in estates and trusts.

Rights of a surviving spouse

When a married spouse dies, the surviving spouse can either:

Determining the amount of an equalization payment and comparing it to what a spouse would receive under the Will or on an intestacy can be complicated. The surviving spouse should consult with a lawyer soon after the deceased’s death to figure out which option is best for them in their circumstances. The election for an equalization of net family property must be made no later than six months from the date of death, unless the court grants an extension of time.

To file an election, you or your lawyer must complete the Form 1 titled “Election of Surviving Spouse” and send it by mail to:

Estate Registrar for Ontario
c/o Toronto Estates Office
Superior Court of Justice
330 University Avenue
Toronto, Ontario
M5G 1R7

The form affects your legal rights and therefore you should speak with a lawyer before filing it with the court. If you do not have a lawyer, you can find a lawyer through the Lawyer Referral Service of the Law Society of Ontario. Court staff cannot give legal advice.

Estate administration tax

The Estate Administration Tax is charged on the value of the estate of a deceased person if an estate certificate (probate) is applied for and is issued.

Estate administration tax is calculated on the total value (in Canadian dollars) of a deceased person's estate as of their date of death.

You pay the tax as a deposit when applying to the court for probate. Once a probate certificate is issued, that deposit becomes the Estate Administration Tax.

If a probate certificate is not applied for and not issued, no Estate Administration Tax is due. If you have applied for a probate certificate, but it was not issued, your deposit will be refunded.

Learn more about the Estate Administration Tax and how to calculate the value of an estate.

The Office of the Public Guardian and Trustee as estate trustee of last resort

The Office of the Public Guardian and Trustee (OPGT) protects the interests of potential heirs when an Ontario resident dies and no eligible person is available to administer the estate.

The OPGT may apply to be appointed estate trustee of last resort if all of the following apply:

  • the deceased was an Ontario resident or owned real estate in Ontario
  • the deceased did not make a Will or the deceased did make a Will but the executor has since died or become incapable
  • there are no known next-of-kin living in Ontario or the next-of-kin are minors or mentally incapable adults
  • the estate meets the OPGT’s financial criteria after payment of the funeral and all debts owing by the estate

The OPGT cannot provide legal advice or assist individuals in preparing court applications and does not supply forms for court applications.

When the OPGT is appointed estate trustee, fees are charged according to regulation under the Public Guardian and Trustee Act. If there are professional services required to administer the estate, such as tax return filings, real estate maintenance, legal, investigative or genealogical research, the associated fees are paid out of the estate as expenses.

For more information, call or email:

Additional resources

Updated: September 22, 2021
Published: September 22, 2021