When Is Probate Required in Ontario? | Estate Planning Lawyer in Hamilton & Burlington
This question is asked frequently. I provide some guidance; however, before answering, I will make a few comments on my own observations:
- Ontario has the highest Probate Tax (also known as Probate Fees) in the country. At approximately 1.5% of the estate value, this is a cash-grab in Ontario, let there be no doubt.
- One should always explore legal means to avoid or reduce probate taxes wherever and whenever possible (but see point 5 below).
- Whether or not probate is required is an endless question with much uncertainty. Many an estate plan to avoid probate later gets undone by a single asset that poisoned the entire plan and triggered probate (and probate taxes) on the entire estate.
- Whether or not probate is required, at times, turns on hard and fast rules, while, at other times, it turns on touchy-feely attitudes of financial institutions (“…because I said so”, seems to be the attitude of banks when pushed on why they are requiring, or not requiring, probate).
- Avoiding or reducing probate tax may be more trouble than it’s worth. One can incur significant income taxes or legal fees, or create many other problems, from rearranging their assets to avoid probate. A costs-benefits analysis is crucial.
- To those committed to avoiding probate taxes (and subjecting their assets through an open court process), there are many tools in a lawyer’s toolbox that we love to use.
Use the Ontario Probate Tax Calculator
See Our Services on Wills and Estate Planning
See also, Services on Trusts and Wealth Preservation (we discuss possible solutions to avoiding probate taxes)
What does “Probate” even mean?
Probate is derived from the word “prove” – essentially, probating a will is proving or verifying that a will is valid.
When someone passes away in Ontario, one of the first questions families face is whether probate is required. Probate is the court process that confirms a will is valid and gives the executor legal authority to act. Not every estate needs it, but many do — especially when third parties need certainty before releasing assets.
Below is a clear, simplified guide to when probate is required, may be required, and is not needed in Ontario.
So, What Is Probate?
Probate (formally, a Certificate of Appointment of Estate Trustee) gives the executor authority to:
- Access bank accounts
- Sell or transfer real estate
- Deal with investments
- Communicate with institutions
- Distribute assets
Without probate, many organizations will not release information or funds.
When Probate Is Required
- Real Estate in the Deceased’s Name Alone
If the deceased owned property solely in their name, probate is almost always required to sell or transfer it.
Exception: Joint tenancy with a right of survivorship.
- Banks or Financial Institutions Require It
Most banks require probate when:
- Account balances exceed their internal threshold
- There are multiple beneficiaries
- The will is old, unclear, or handwritten
- There is no will
Each institution sets its own rules.
- No Will (Intestacy)
If someone dies without a will, probate is usually required so the court can appoint an Estate Trustee.
- Third Parties Need Proof of Authority
Probate is often required by:
- Investment firms
- Pension administrators
- Insurance companies (in some cases)
- The Land Registry Office
If an institution demands probate, the executor must apply.
When Probate May Be Required
- Small Estates
Ontario’s simplified process applies to estates under $150,000, but probate may still be needed depending on the assets.
- Joint Assets With Adult Children
Banks may question whether joint ownership was for convenience and still require probate.
- Out‑of‑Province Assets
Other jurisdictions may require probate even if Ontario does not.
When Probate Is Not Required
- Jointly Owned Assets With Right of Survivorship
Joint bank accounts and jointly owned homes typically pass directly to the surviving owner.
- Assets With Named Beneficiaries
These bypass the estate:
- Life insurance
- RRSPs, RRIFs, TFSAs
- Pension benefits
If the estate is the beneficiary, probate may be required.
- Personal Belongings
Household items and personal effects rarely require probate unless there is a dispute.
Why Probate Matters
Probate protects the executor from liability if:
- A later will appears
- A beneficiary challenges the estate
- A creditor comes forward
It provides legal certainty and reduces risk.
Is Probate Required in Your Ontario Estate?
Whether probate is required depends on the assets, how they were owned, and the policies of banks and institutions. A brief consultation can often clarify the requirements and help families avoid delays or unnecessary costs.
There are often exceptions to the rule and other considerations – the discussions in this blog are meant for educational purposes and does not provide legal advice. Contact us and we would be happy to provide help on your estate matter.
