Estate Administration

2 Matter Plans Included

ALERTS - Nil
Full Commentary - Appointment of an Estate Trustee with a Will (ON)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
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- Electronic Signing and Remote Witnessing
- Further information
Overview

Estate administration is the legal process of managing a deceased person's estate. An estate includes all the assets and liabilities the deceased owned at the date of death. However, estate administration involves far more than simply managing property. It involves tasks such as arranging the ...
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A. Getting the matter underway
- File cover sheet - Estate administration
- To do list - Appointment of an estate trustee with a will
- First steps
- Client details, verification, and source of funds
- Retainer instructions - Estate administration
- Conflict of interest check
- Initial letter to client enclosing retainer agreement - Appointment of an estate trustee with a will
- Retainer agreement - Ontario
- Scope of work - Estate administration
- Estate information worksheet
- Estate assets information worksheet
- Estate debts information worksheet
- Interests in the estate worksheet
- Deadlines for estate information return and income tax filings
- If required - Authority previous lawyer
  - Letter to previous lawyer with authority to obtain documents
  - Authority to obtain documents from previous lawyer
- If required - Application for a death certificate
  - Get or replace an Ontario death certificate – Government of Ontario
  - Online Certificate Application – ServiceOntario
- Time and costs estimates
- If required - Updating costs disclosure and non-engagement
  - Letter to client updating costs disclosure
  - Letter to client advising non-engagement
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Confidentiality deed
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment clause
    
    Confidentiality clause for defined information - All parties
    
    Confidentiality clause for defined information - One party
    
    Confidentiality clause for terms of agreement - All parties
    
    Confidentiality clause for terms of agreement - One party
    
    Costs clause
    
    Counterparts clause
    
    Dispute resolution clause
    
    Events beyond control clause
    
    Governing law and jurisdiction clause
    
    Interpretation clause
    
    No assignment clause
    
    Notices clause
    
    Severance clause
    
    Waiver clause
    
    Whole agreement clause
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment clause
    
    Confidentiality clause for defined information - All parties
    
    Confidentiality clause for defined information - One party
    
    Confidentiality clause for terms of agreement - All parties
    
    Confidentiality clause for terms of agreement - One party
    
    Costs clause
    
    Counterparts clause
    
    Dispute resolution clause
    
    Events beyond control clause
    
    Governing law and jurisdiction clause
    
    Interpretation clause
    
    No assignment clause
    
    Notices clause
    
    Severance clause
    
    Waiver clause
    
    Whole agreement clause
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
  - Statutory declaration
    
    Statutory declaration
  - Standard annexure note for documents
B. Preliminary considerations
- Preliminary considerations
  
  Client engagement In estate administration matters, the client is the estate trustee, not the estate itself, the deceased, or the beneficiaries, unless a beneficiary is also acting as the estate trustee.
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- Procedural checklist for first meeting with the estate trustee
- Estate trustee named in the will
  
  A testator can name any person as their estate trustee, including a minor. However, the court will not issue a certificate of appointment of estate trustee to a person who is still a minor at the time of the testator’s death. If the minor is the only estate trustee named in the will, the court may ...
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- Steps in the administration process
  
  An estate trustee is responsible for carrying out the administration of the deceased's estate. The key steps in the administration process include the following:
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- Letter to estate trustee client enclosing summary of process and estate administration worksheets
- Information sheet - Estate assets to consider when preparing for administration
- Information sheet - Estate debts to consider when preparing for administration
- Information sheet - Organizing estate documents and records
- Information sheet - Who to notify during estate administration
- Estate trustee's legal duties
  
  An estate trustee owes significant duties and responsibilities in the administration of an estate. These include not only practical tasks, such as locating assets, paying debts, and filing tax returns, but also important legal obligations arising from statute and common law. As estate trustee who ...
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- Letter to estate trustee client enclosing legal duties information sheet
- Information sheet - The estate trustees legal duties
- Funeral arrangements
  
  The estate trustee is responsible for arranging the deceased's funeral. However, they are not legally required to follow funeral instructions outlined in the deceased's will: see Z.L. v. L.B., 2009 CanLII 14571 (ON SC) at paragraph 20. Funeral expenses must be reasonable, taking into account the ...
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- Intestacy
  
  Intestacy arises when a person dies without a valid will. A partial intestacy occurs when the deceased leaves a valid will that fails to dispose of all their assets. In such cases, the distribution of the estate, or the undisposed portion, is governed by the rules of intestacy set out in the ...
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- Delaying distribution of the estate
  
  There are 2 key considerations that may require the estate trustee and the lawyer handling the estate matter to delay the distribution of the estate:
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- Letter to surviving spouse advising of right to make an election
- Validity of the will
  
  The formal requirements for a will to be valid in Ontario are set out in ss 3–12 of the Succession Law Reform Act 1990. Under these requirements:
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- If required - Will on deposit with court or held by other party
  - Wills on deposit with the court
    
    A testator can deposit a will or codicil with the court for safekeeping in accordance with s 2 of the Estates Act 1990 and r 74.02(1) of the Rules of Civil Procedure. The court will accept a will or codicil for safekeeping only if it is deposited by one of the following:
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  - Letter to court requesting release of will
  - Authorization and consent to court by non-applicant estate trustee to release will
  - Direction to court to release will
  - Wills held by other parties
    
    The lawyer who prepared the will or codicil for the deceased testator may still be in possession of the original document. To request access to that original will or codicil, the estate trustee named in the will must contact the lawyer and provide the following:
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  - Letter to third party requesting release of will
  - Authorization and consent to third party by non-applicant estate trustee to release will
  - Direction to third party to release will
- If required - Declaration of death
  - Presumption of death
    
    When it is uncertain whether a testator, executor, beneficiary, or intestate individual is deceased, the Declarations of Death Act 2002 allows an interested person to apply to the Superior Court of Justice for an order declaring the individual dead: s 2(1). An application for a declaration of ...
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  - Notice of Application
  - Information for Court Use
  - Affidavit of Service
C. Preparing to apply for a certificate of appointment
- When a certificate of appointment is required
  
  A certificate of appointment is a court issued document confirming that the estate trustee has the legal authority to act on behalf of the deceased and administer their estate. An estate trustee is required to act reasonably and to incur only those expenses necessary for the proper administration ...
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- Type of certificate of appointment required
  
  Depending on the circumstances, different types of certificates of appointment may be appropriate. While each certificate has its own application requirements, all serve the common purpose of providing third parties with legal reassurance that the estate trustee is lawfully authorized to act on ...
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- Distribution without a certificate of appointment
  
  In situations where third parties are willing to transfer or release all of the deceased's assets to the estate trustee without requiring a certificate of appointment, the estate trustee should nonetheless take steps to protect themselves from potential liability. An estate trustee who distributes ...
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- Release and indemnity - Distribution to beneficiary without a certificate of appointment
- Deed of release and indemnity - No certificate of appointment
- Determining if third parties require the certificate of appointment
  - Determining if third parties require the certificate of appointment
    
    To determine whether a certificate of appointment is required before a third party will transfer or release the deceased's assets to the estate trustee, the best practice is for the lawyer to send a written request directly to the third party holding the assets. The letter should:
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  - Letter to third party to determine whether a certificate of appointment is required
  - Authorization and consent by estate trustee to third party permitting release of asset information to lawyer
  - Certificate of notarial copy
- Valuing estate assets
  - Valuing estate assets
    
    Valuing the assets of an estate is necessary to determine the:
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  - Information sheet - Estate assets to consider when preparing for administration
  - Estate assets information worksheet
  - Real property
    
    The total value of the estate includes real property located in Ontario that was owned by the deceased:
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  - Personal property
    
    Certain personal property assets are excluded from the value of the estate, including:
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  - Letter to third party requesting information about the deceased's assets
  - Authorization and consent by estate trustee to third party permitting release of asset information to lawyer
  - Certificate of notarial copy
  - Affidavit
  - Clause - Translator's affidavit of official translation
  - Banks and financial institutions
    
    Bank accounts and other financial account assets
    
    If the estate trustee is aware of bank accounts and investments held by the deceased, they may contact the relevant financial institutions directly to request information. However, in most cases, the lawyer acting for the estate trustee prepares and sends a formal letter to each bank or financial ...
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    Letter to bank requesting account and investment information
    
    Authorization and consent by estate trustee to third party permitting release of asset information to lawyer
    
    Certificate of notarial copy
    
    Affidavit
    
    Clause - Translator's affidavit of official translation
  - Investment accounts and registered plans
    
    Investments in publicly traded stocks
    
    Information about publicly traded stocks held by the deceased can typically be obtained by contacting the deceased's stockbroker or investment advisor. This is usually done through a formal letter prepared by the lawyer acting for the estate trustee, requesting full details of all stock holdings. ...
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    Letter to stockbroker or investment advisor requesting investment information
    
    Letter to registered plan holder requesting registered plan information
    
    Authorization and consent by estate trustee to third party permitting release of asset information to lawyer
    
    Certificate of notarial copy
    
    Affidavit
    
    Clause - Translator's affidavit of official translation
  - Insurance policies
    
    Insurance
    
    Information about insurance policies held by the deceased can be obtained by contacting the relevant insurance company. A formal request letter, similar to those sent to banks or financial institutions, can be prepared by the lawyer acting for the estate trustee and submitted to the insurer. ...
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    Letter to insurance company requesting policy information
    
    Authorization and consent by estate trustee to third party permitting release of asset information to lawyer
    
    Certificate of notarial copy
    
    Affidavit
    
    Clause - Translator's affidavit of official translation
  - Personal effects, collections, furniture, and jewellery
    
    Personal collections
    
    If the deceased owned a personal collection of artwork or other valuable items, the estate trustee may engage the services of an on-site estate appraiser. The appraiser attends the location where the collection is stored and prepares a formal appraisal report, which typically includes a description ...
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    Household furniture
    
    The estate must assign a fair market value to the deceased's household furniture. In many cases, a nominal value is attributed to standard household furniture. However, if the deceased's furniture appears to be valuable, the estate trustee should consider obtaining a professional appraisal. A ...
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    Personal effects and jewellery
    
    The deceased's personal effects include clothing and jewellery. Generally, the estate trustee assigns a nominal value to personal effects, particularly clothing, given their limited resale value. However, for jewellery, it is important to obtain a professional appraisal to determine its fair market ...
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    Letter requesting information about appraisal services for personal property
    
    Appraisal Institute of Canada - Ontario
  - Employment and other entitlements and debts
    
    Entitlements or other debts owed to the deceased
    
    The estate trustee must determine whether any debts or entitlements are payable to the deceased and, if so, establish their value. A debt may include amounts such as unpaid wages for work performed prior to death, while an entitlement could include accrued vacation pay, bonuses, or other employment ...
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    Letter to employer requesting information about amounts or entitlements owed
    
    Letter to debtor requesting information about debts owed
    
    Authorization and consent by estate trustee to third party permitting release of asset information to lawyer
    
    Certificate of notarial copy
    
    Business interests
    
    The deceased may have held business interests that must be included in the value of the estate. These interests could have been held through a variety of business structures, including:
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    Letter requesting information about business interests
  - Library of initial letters to asset holders
    
    Initial letter to bank
    
    Initial letter to corporation for debenture particulars
    
    Initial letter to corporation or registry for share particulars
    
    Initial letter to deceased's accountant
    
    Initial letter to deceased's employer
    
    Initial letter to health insurance company
    
    Initial letter to insurance company requesting details of bonds
    
    Initial letter to lender requesting mortgage details and transfer requirements
    
    Initial letter to life insurance company for policy details
    
    Initial letter to pension fund company
    
    Initial letter to retirement home
    
    Initial letter to ServiceOntario re licence and motor vehicle
    
    Initial letter to stockbroker requesting portfolio details
    
    Initial letter general cancellation of membership
- Estate administration tax
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Government of Ontario
  - Letter to bank requesting release of funds for payment of estate administration tax
  - Authorization and direction to bank to release funds for payment of Estate Administration Tax
  - Letter to investment company requesting release of funds for payment of estate administration tax
  - Authorization and direction to investment advisor to release funds for payment of estate administration tax
  - Certificate of notarial copy
  - If required - Paying based on estimated value
    
    Paying the tax based on an estimated value of the estate
    
    When the estate trustee is unable to determine the actual value of the estate at the time of filing the application, it is possible to pay the estate administration tax based on an estimated value of the estate: s 4(3) of the Estate Administration Tax Act 1998 and r 74.13(2) of the Rules ...
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    Undertaking to file sworn statement of the actual value of the estate
  - If required - Requesting a deferral
    
    Requesting a deferral of payment
    
    Under s 4 of the Estate Administration Tax Act 1998, an applicant for a certificate of appointment can seek a court order to defer payment of estate administration tax. A judge has the authority to grant the deferral order if all the conditions set out in s 4(2) are satisfied, including:
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    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
- If required - Bonds of indemnity
  - Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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  - Who can act as a surety
    
    Both individuals and bonding companies can act as sureties. In accordance with r 74.11 of the Rules of Civil Procedure, the following third parties can be a surety:
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Amount of the bond and the number of sureties
    
    A judge of the Superior Court of Justice has the authority to determine the bond requirements for an application for a certificate of appointment. Unless the court orders otherwise, the amount of the bond must be double the amount of the value of the estate: s 37(1) of the Estates Act 1990. ...
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  - Spousal request to waive bond requirement
    
    An applicant spouse who was married to the deceased may request a waiver of the bond requirement by filing, along with the application for a certificate of appointment, an Affidavit, form 4D, that:
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  - Affidavit
  - Clause - Affidavit of spouse to request waiver of bond requirement
  - Request on consent to dispense with or reduce bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Under r 74.11(5) of the Rules of Civil Procedure, an applicant can request an order under s 37(2) of the Estates Act 1990 to dispense with the requirement to provide a bond, or to reduce the bond amount, on consent and without bringing a motion. This option is available only if:
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    Letter to beneficiary requesting consent to dispense with bond requirement
    
    Renunciation and Consent
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
  - Motion to dispense with or reduce bond requirement
    
    Request by motion to dispense with or reduce bond requirement
    
    A request to dispense with the requirement to provide a bond, or to reduce the bond amount under s 37(2) of the Estates Act 1990, can be made by motion in accordance with the r 37 motions procedure: see r 74.11(4). The motion may be brought before, with, or after the application for ...
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    Notice of Motion
    
    Affidavit
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit of Service
- If required - Notice of commencement of proceeding
  - Notice of commencement of proceeding
    
    Under r 74.03(1) of the Rules of Civil Procedure, a person with a financial interest in an estate can file a Request for Notice of Commencement of Proceeding with the estate registrar. This request entitles the person to receive notice of any legal proceeding commenced in relation to the ...
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  - Request for Notice of Commencement of Proceeding
- If required - Renunciation by named executor
  - Letter to person renouncing enclosing renunciation form for person entitled to apply for a certificate of appointment who is not applying
  - Letter to person renouncing enclosing renunciation form for person entitled to a gift that may be affected by renunciation
  - Renunciation and Consent
D. The application process
- The application process
  
  The application process for a certificate of appointment varies depending on the type of certificate required and the specific circumstances of the estate. The forms to be used and the documents that must be filed with each application are outlined below. The most commonly requested certificates ...
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- Type of certificate of appointment required
  
  Depending on the circumstances, different types of certificates of appointment may be appropriate. While each certificate has its own application requirements, all serve the common purpose of providing third parties with legal reassurance that the estate trustee is lawfully authorized to act on ...
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- Who is entitled to apply
  
  The person entitled to apply for a certificate of appointment depends on whether the deceased died with a will or intestate. This must be considered alongside whether the applicant will be required to post a bond of indemnity, as requirements vary. See When a bond is required or waived.
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- Practice directions
  
  Both provincial and regional practice directions apply to estate matters in Ontario. The Ontario Superior Court of Justice's Consolidated Civil Procedure Practice Direction applies to all civil court proceedings, including estate matters, unless stated otherwise.
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- Initial letter to beneficiary - Application with a will
- Initial letter to beneficiary - Application with a will by alternate executor
- Certificate of appointment of estate trustee with a will
  - Certificate of appointment of estate trustee with a will
    
    The documents required to file an application for a certificate of appointment of estate trustee with a will are set out in r 74.04(1) and include:
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  - Application for a Certificate of Appointment of Estate Trustee
  - Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee
  - Lawyer’s Certificate of Service of Application for a Certificate of Appointment of Estate Trustee
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Affidavit of Execution of Will or Codicil
  - Affidavit of Condition of Will or Codicil
  - Affidavit
  - Letter to beneficiary requesting consent to application
  - Renunciation and Consent
  - Letter to person renouncing enclosing renunciation form for person entitled to a gift that may be affected by renunciation
  - Certificate of notarial copy
  - Bonds of indemnity
    
    Personal Surety – form 74M Typically, personal sureties must post a bond that is double the estate's value. If the value of the estate exceeds $100,000, 2 personal sureties are usually required. In such cases, each posts a bond equal to the value of the estate.
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Government of Ontario
  - Who must be served a copy of the application
    
    Persons entitled to a share in the distribution of the estate must be served notice of the application for a certificate of appointment. If there is uncertainty about whether someone ought to be served, it is best practice to include them out of caution. Under r 74.04(2), the application must ...
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  - Letter to court enclosing application for certificate of appointment of estate trustee with a will
  - If required - Will in holograph form
    
    Affidavit Regarding a Holograph Will or Codicil
    
    Affidavit
    
    Clause - Affidavit to confirm the signature of the deceased
  - Common errors and questions when completing the application
    
    Common errors and questions when completing the application
    
    Applications for a certificate of appointment with a will may be returned by the registrar with a Registrar's Notice if the forms are incomplete or contain incorrect information. This can lead to unnecessary delays and added expense. To avoid this, each form should be carefully prepared, reviewed, ...
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    Schedule to Form 74A - Information about the deceased's relationships
    
    Certificate of notarial copy
    
    Affidavit
    
    Clause - Translator's affidavit of official translation
- Certificate of appointment of estate trustee with a will limited to the assets referred to in the will
  - Certificate of appointment of estate trustee with a will limited to the assets referred to in the will
    
    The documents required to file an application for a certificate of appointment of estate trustee with a will limited to the assets referred to in the will are set out in r 74.04(1) and include the following:
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  - Letter to court enclosing application for certificate of appointment of estate trustee with a will limited to the assets referred to in the will
  - Order in an Estates Proceeding
  - Backsheet
- Small estate certificate
  - Small estate certificate
    
    The documents to file in an application for a small estate certificate are set out in r 74.1.03(1) and include:
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  - Application for a Small Estate Certificate
  - Request to File an Application for a Small Estate Certificate or an Amended Small Estate Certificate
  - Small Estate Certificate
  - Backsheet
  - Affidavit of Execution of Will or Codicil
  - Affidavit of Condition of Will or Codicil
  - Affidavit
  - Bonds of indemnity
    
    Personal Surety – form 74M Typically, personal sureties must post a bond that is double the estate's value. If the value of the estate exceeds $100,000, 2 personal sureties are usually required. In such cases, each posts a bond equal to the value of the estate.
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Government of Ontario
  - Letter to person entitled to apply for small estate certificate enclosing renunciation form
  - Letter to beneficiary requesting consent to application for small estate certificate
  - Renunciation and Consent
  - Who must be served notice of the application
    
    The applicant must provide notice of the application to all beneficiaries entitled to a share in the distribution of the estate, including contingent beneficiaries and any organizations or institutions entitled to a distribution, such as charities: r 74.1.03(3). Notice must include:
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  - Letter to court enclosing application for small estate certificate
  - If required - Will in holograph form
    
    Affidavit Regarding a Holograph Will or Codicil
    
    Affidavit
    
    Clause - Affidavit to confirm the signature of the deceased
  - Common errors when completing the forms
    
    Common errors when completing the forms – Small estate certificate
    
    Forms submitted with an application may be returned with a Registrar's Notice if they are incomplete or contain incorrect information. This can lead to unnecessary delays and added expense. To avoid such outcomes, each form should be carefully prepared, reviewed, and re-reviewed before filing. ...
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    Schedule to form 74.1A - Information about the deceased's relationships
    
    Certificate of notarial copy
    
    Affidavit
    
    Clause - Translator's affidavit of official translation
- Amended small estate certificate
  - Amended small estate certificate
    
    If additional assets are discovered after a small estate certificate is issued, and the total value of the estate remains at or below $150,000, the estate trustee named in the certificate may apply to amend the certificate to include the newly discovered assets. Only the estate trustee named in the ...
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  - Application to Amend Small Estate Certificate
  - Request to File an Application for a Small Estate Certificate or an Amended Small Estate Certificate
  - Amended Small Estate Certificate
  - Letter to court enclosing application for amended small estate certificate
- Certificate of appointment of estate trustee without a will
  - Certificate of appointment of estate trustee without a will
    
    The documents to file in an application for a certificate of appointment of estate trustee without a will are set out in r 74.04(1) and include:
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  - Application for a Certificate of Appointment of Estate Trustee
  - Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee
  - Lawyer’s Certificate of Service of Application for a Certificate of Appointment of Estate Trustee
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Renunciation and Consent
  - Letter to beneficiary requesting consent to application for a certificate of appointment of estate trustee without a will
  - Letter to person entitled to apply for certificate of appointment of estate trustee without a will enclosing renunciation form
  - Bonds of indemnity
    
    Personal Surety – form 74M Typically, personal sureties must post a bond that is double the estate's value. If the value of the estate exceeds $100,000, 2 personal sureties are usually required. In such cases, each posts a bond equal to the value of the estate.
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Government of Ontario
  - Who must be served with a copy of the application in an intestacy
    
    A Notice of an Application for the Appointment of Estate Trustee Without a Will must be served on all persons entitled to share in the deceased's estate: r 74.04(1). The law of intestacy determines the beneficiaries of an intestate estate and, therefore, who must be served notice of the ...
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  - Letter to court enclosing application for certificate of appointment of estate trustee without a will
  - Common errors when completing the application in an intestacy
    
    Common errors when completing the application in an intestacy
    
    Forms submitted with an application may be returned with a Registrar's Notice if they are incomplete or contain incorrect information. This can lead to unnecessary delays and added expense. To avoid such outcomes, each form should be carefully prepared, reviewed, and re-reviewed before filing. ...
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    Schedule to Form 74A - Information about the deceased's relationships
- Court status certificate - Confirmation of estate trustees
  - Court status certificate – Confirmation of estate trustees
    
    A court status certificate confirms that the estate trustee has the authority to act on behalf of the deceased and administer their estate.
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  - Confirmation of status of estate trustee through devolution of executorship
    
    A court status certificate may be needed to prove that a person is authorized to act as estate trustee by virtue of the devolution of executorship following the death of the original estate trustee. The new estate trustee uses this certificate to validate their authority to third parties. The ...
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  - Letter to court requesting confirmation of status of estate trustee - Devolution of executorship
  - Confirmation of surviving estate trustee's authority to act
    
    A surviving estate trustee may need to prove they continue to have the authority to act following the death of a co-estate trustee. The documents to file in an application for a court status certificate are set out in r 74.14.2(2) and (4) and include:
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  - Letter to court requesting confirmation of status of estate trustee - Surviving estate trustee
  - Confirmation that an estate trustee has been replaced by another person
    
    The court may order the removal an estate trustee and appoint a replacement who will continue administering the estate. The documents to file in an application for a court status certificate are set out in r 74.14.2(2) and (5) and include:
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  - Letter to court requesting confirmation of status of estate trustee - Replacement by court order
  - Affidavit
- Confirmation by resealing of appointment of estate trustee
  - Confirmation by resealing of appointment of estate trustee
    
    The documents to file in an application for a confirmation by resealing of appointment of estate trustee are set out in r 74.08(1) and include the following:
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  - Eligibility to apply
    
    Confirmation by resealing of appointment of estate trustee is only available for applicant's who are:
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  - Application for Certificate or Confirmation of Appointment
  - Bonds of indemnity
    
    Personal Surety – form 74M Typically, personal sureties must post a bond that is double the estate's value. If the value of the estate exceeds $100,000, 2 personal sureties are usually required. In such cases, each posts a bond equal to the value of the estate.
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Government of Ontario
  - Letter to court enclosing application confirmation by resealing of appointment of estate trustee
- Certificate of ancillary appointment of estate trustee with a will
  - Certificate of ancillary appointment of estate trustee with a will
    
    The documents to file in an application for a certificate of ancillary appointment of estate trustee with a will are set out in r 74.09(1) and include the following:
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  - Application for Certificate or Confirmation of Appointment
  - Bonds of indemnity
    
    Personal Surety – form 74M Typically, personal sureties must post a bond that is double the estate's value. If the value of the estate exceeds $100,000, 2 personal sureties are usually required. In such cases, each posts a bond equal to the value of the estate.
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Government of Ontario
  - Letter to court enclosing application for certificate of ancillary appointment of estate trustee with a will
- Certificate of appointment of foreign estate trustee’s nominee as estate trustee without a will
  - Certificate of appointment of foreign estate trustee's nominee as estate trustee without a will
    
    This application is made when a person has been appointed estate trustee without a will by a court in a jurisdiction outside Canada and the Commonwealth. A foreign estate trustee must nominate a resident of Ontario to act on their behalf. The nominee then files the application for the certificate ...
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  - Application for Certificate or Confirmation of Appointment
  - Nomination of Applicant by Foreign Estate Trustee
  - Bonds of indemnity
    
    Personal Surety – form 74M Typically, personal sureties must post a bond that is double the estate's value. If the value of the estate exceeds $100,000, 2 personal sureties are usually required. In such cases, each posts a bond equal to the value of the estate.
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Government of Ontario
  - Affidavit
  - Clause - Translator's affidavit of official translation
  - Certificate of notarial copy
  - Letter to court enclosing application for certificate of appointment of foreign estate trustee’s nominee as estate trustee without a will
- Certificate of appointment of estate trustee during litigation
  - Certificate of appointment of estate trustee during litigation
    
    An application for a certificate of appointment of estate trustee during litigation can only be made after the court has issued an order appointing an estate trustee to manage estate property while litigation is ongoing. This appointment is intended to preserve estate assets during litigation when ...
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  - Application for Certificate or Confirmation of Appointment
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Bonds of indemnity
    
    Personal Surety – form 74M Typically, personal sureties must post a bond that is double the estate's value. If the value of the estate exceeds $100,000, 2 personal sureties are usually required. In such cases, each posts a bond equal to the value of the estate.
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Letter to court enclosing application for certificate of appointment of estate trustee during litigation
- Certificate of appointment of succeeding estate trustee
  - Certificate of appointment of succeeding estate trustee
    
    A succeeding estate trustee may be appointed when the original estate trustee:
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  - Certificate of appointment of succeeding estate trustee with a will
    
    Application for certificate of appointment of succeeding estate trustee with a will
    
    The documents to file in an application for a certificate of appointment of succeeding estate trustee with a will are set out in r 74.06(1) and (2) and include the following:
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    Application for Certificate or Confirmation of Appointment
    
    Certificate of Appointment of Estate Trustee
    
    Backsheet
    
    Renunciation and Consent
    
    Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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    Bond - Insurance or Guarantee Company
    
    Bond - Personal Sureties
    
    Letter to court enclosing application for certificate of appointment of succeeding estate trustee with a will
  - Certificate of appointment of succeeding estate trustee without a will
    
    Application for certificate of appointment of succeeding estate trustee without a will
    
    The documents to file in an application for a certificate of appointment of succeeding estate trustee without a will are set out in r 74.07 and include:
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    Application for Certificate or Confirmation of Appointment
    
    Certificate of Appointment of Estate Trustee
    
    Backsheet
    
    Renunciation and Consent
    
    Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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    Bond - Insurance or Guarantee Company
    
    Bond - Personal Sureties
    
    Letter to court enclosing application for certificate of appointment of succeeding estate trustee without a will
- If required - Deferral of estate administration tax or payment based on estimate
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Requesting a deferral of tax payment
    
    Requesting a deferral of payment
    
    Under s 4 of the Estate Administration Tax Act 1998, an applicant for a certificate of appointment can seek a court order to defer payment of estate administration tax. A judge has the authority to grant the deferral order if all the conditions set out in s 4(2) are satisfied, including:
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    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
  - Paying the tax based on an estimated value of the estate
    
    Paying the tax based on an estimated value of the estate
    
    When the estate trustee is unable to determine the actual value of the estate at the time of filing the application, it is possible to pay the estate administration tax based on an estimated value of the estate: s 4(3) of the Estate Administration Tax Act 1998 and r 74.13(2) of the Rules ...
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    Undertaking to file sworn statement of the actual value of the estate
- If required - Waive, dispense, or reduce bond requirement
  - Spousal request to waive bond requirement
    
    An applicant spouse who was married to the deceased may request a waiver of the bond requirement by filing, along with the application for a certificate of appointment, an Affidavit, form 4D, that:
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  - Affidavit
  - Clause - Affidavit of spouse to request waiver of bond requirement
  - Request on consent to dispense with or reduce bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Under r 74.11(5) of the Rules of Civil Procedure, an applicant can request an order under s 37(2) of the Estates Act 1990 to dispense with the requirement to provide a bond, or to reduce the bond amount, on consent and without bringing a motion. This option is available only if:
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    Letter to beneficiary requesting consent to dispense with bond requirement
    
    Renunciation and Consent
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
  - Motion to dispense with or reduce bond requirement
    
    Request by motion to dispense with or reduce bond requirement
    
    A request to dispense with the requirement to provide a bond, or to reduce the bond amount under s 37(2) of the Estates Act 1990, can be made by motion in accordance with the r 37 motions procedure: see r 74.11(4). The motion may be brought before, with, or after the application for ...
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    Notice of Motion
    
    Affidavit
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit of Service
E. Signing, serving, and filing the application package
- Digital signatures
  
  A digital signature is an electronic signature in one of the following acceptable formats:
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- Remotely commissioned affidavits
  
  Affidavits commissioned remotely must comply with the requirements set out in O. Reg. 431/20: Administering Oath or Declaration Remotely. In accordance with s 1 of O. Reg. 431/20, the following conditions must be met:
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- Serving the application for a certificate of appointment
  - Serving the application for a certificate of appointment
    
    Under r 74.04(2) and r 74.1.03(3) of the Rules of Civil Procedure, an applicant for a certificate of appointment, including a small estate certificate, must serve a copy of the application on each person entitled to a share in the distribution of the estate. This includes:
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  - Method of service
    
    Under r 74.04(7) and r 74.1.03(7), documents may be served by:
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  - Documents to be served
    
    The service must include:
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  - Letter to beneficiary giving notice of application
  - Service when the deceased died intestate
    
    If the net value of estate exceeds $350,000, the following individuals are entitled to a share of the estate and must be served notice of the application, in this order of priority:
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  - Service on minors and unborn or unascertained persons
    
    Under r 74.04(3) and r 74.1.03(4), if a person entitled to a share of the estate is a minor, under 18 years of age, notice must be served on their parent or guardian, and The Office of the Children's Lawyer. For unborn or unascertained beneficiaries, in accordance with r 74.04(4) and ...
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  - Service on mentally incapable persons
    
    If a beneficiary is mentally incapable, as defined in s 6 of the Substitute Decisions Act 1992, in accordance with r 74.04(5) and r 74.1.03(6) notice must be served on:
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  - Serving documents on the Crown in a civil case – Government of Ontario
  - Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee
  - Lawyer’s Certificate of Service of Application for a Certificate of Appointment of Estate Trustee
- Filing the application
  - Filing the application for a certificate of appointment
  - Where to apply
    
    An application for a certificate of appointment is made to the Superior Court of Justice. If the deceased resided in Ontario, the application is filed in the court office for the county or district where they had their fixed place of abode: s 7(1) of the Estates Act 1990. A fixed place of ...
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  - Provincial court location and hours – Ministry of the Attorney General
  - Letter to court enclosing application for certificate of appointment of estate trustee with a will
  - Letter to court enclosing application for certificate of appointment of estate trustee with a will limited to the assets referred to in the will
  - Letter to court enclosing application for small estate certificate
  - Letter to court enclosing application for amended small estate certificate
  - Letter to court enclosing application for certificate of appointment of estate trustee without a will
  - Letter to court requesting confirmation of status of estate trustee - Devolution of executorship
  - Letter to court requesting confirmation of status of estate trustee - Surviving estate trustee
  - Letter to court requesting confirmation of status of estate trustee - Replacement by court order
  - Letter to court enclosing application confirmation by resealing of appointment of estate trustee
  - Letter to court enclosing application for certificate of ancillary appointment of estate trustee with a will
  - Letter to court enclosing application for certificate of appointment of foreign estate trustee’s nominee as estate trustee without a will
  - Letter to court enclosing application for certificate of appointment of estate trustee during litigation
  - Letter to court enclosing application for certificate of appointment of succeeding estate trustee with a will
  - Letter to court enclosing application for certificate of appointment of succeeding estate trustee without a will
  - Documents that can be filed by email and those that must be filed in paper format
    
    Not all court documents and support material can be filed by email. Certain documents and material included with the application must be in paper format.
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  - Filed by email
    
    The following documents can be filed electronically as part of an email submission:
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  - Information Form Application for Estate Certificate Probate
  - Email Processes for Certificates of Appointment of Estate Trustee (Probate) – Ontario courts
  - Notification of submission and file number
    
    When an application is filed in person, or submitted by mail or courier, the court staff will assign a court file number to the application and issue a notice by mail to the applicant or the filing party confirming the file number. If the application package is incomplete, the court will still ...
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- Issued certificate of appointment
  - Issued certificate of appointment
    
    Once the estate registrar is satisfied that the applicant has complied with all requirements of r 74.14(1) of the Rules of Civil Procedure, a certificate of appointment is issued. The certificate is issued in either electronic or paper format.
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  - Letter to client advising certificate of appointment issued with brief summary of distribution plan
  - Letter to client after Certificate of Appointment of Estate Trustee without a Will issued
  - Letter to client advising small estate certificate issued
  - Letter to client advising appointment as estate trustee and outlining administration process
F. Dealing with estate assets
- Dealing with estate assets
  
  Once the certificate of appointment is issued, the estate trustee can proceed with 2 primary responsibilities:
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- Real estate located in Ontario
  - Real estate located in Ontario
    
    A deceased person's real estate in Ontario can either be:
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  - ServiceOntario Electronic Registration Procedures Guide – Teraview
  - Arrangement between beneficiaries regarding life tenant
    
    Deed of family arrangement - Life tenant and remainderman
- Bank accounts and financial assets
  - Bank accounts and financial assets
    
    The estate trustee must contact any banks or financial institutions holding the deceased's bank accounts or financial assets, such as term deposits, to arrange for ownership to be transferred to the estate bank account. Once the funds or assets are in the estate's name or under the estate trustee's ...
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  - Letter to bank enclosing authorization and requesting transfer of estate assets
  - Authorization and direction by estate trustee to bank
- Registered plans
  - Registered plans
    
    Registered plans include:
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  - Letter to registered plan holder requesting transfer of plan balance
  - Transfer document by estate trustee to registered plan holder
- Investments
  - Investments
    
    The process of transferring investments from the deceased's name to the estate or a beneficiary involves working with the transfer agent. This applies to assets such as stocks, mutual funds, bonds, or other equities. The transfer agent, which is typically a trust company, is usually identified on ...
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  - Letter to transfer agent requesting transfer of shares of capital stock
  - Declaration of transmission by estate trustee
  - Power of attorney to transfer securities
  - Letter of instructions to the transfer agent
- Vehicles
  - Vehicles
    
    The process to transfer ownership of a deceased person's vehicle depends on whether the vehicle is being transferred to a family member or a non-family member.
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  - Transfer to a family member
    
    If a vehicle is being transferred to a beneficiary who is a qualifying family member, the process is streamlined. The estate trustee and the transferee can attend a ServiceOntario centre together to complete the ownership transfer. The following documents are involved in the process:
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  - Sworn Statement for a Family Gift of a Used Motor Vehicle in the Province of Ontario – ServiceOntario
  - Spouse Declaration and/or Plate Transfer Declaration – ServiceOntario
  - Transfer to a non-family member
    
    If the transferee is not a qualifying family member, the following additional documents and steps are required:
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  - Used vehicle information package – ServiceOntario
- Insurance policies
  - Insurance policies
    
    Life insurance policies are either payable to the estate or to a designated beneficiary named in the policy. To claim a policy payable to the estate, the estate trustee must contact the insurer to initiate a claim. The insurer will typically require a certified copy of the certificate of ...
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  - Letter to insurance company to pay out policy to estate or beneficiary
- Business interests
  - Business interests
    
    The deceased's business interests may include assets held in a variety of business structures, such as:
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  - Letter to third party business entity regarding deceased's business interests
- Personal effects
  - Personal effects
    
    Personal effects include furniture, clothing, jewellery, and other belongings of the deceased. While these items are often of little financial value, they may hold significant sentimental value for family members. In some cases, however, personal effects may need a formal appraisal if they have a ...
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  - Acknowledgement of receipt of personal effects and release
  - Arrangement between beneficiaries concerning personal effects
    
    Deed of family arrangement
- Cash, uncashed cheques, and outstanding debts
  - Cash and uncashed cheques
    
    Any cash or uncashed cheques payable to the deceased must be deposited into the estate bank account. If a bank requires that a cheque made payable to the deceased be deposited first into the deceased's personal account, the estate trustee should:
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  - Security deposits
    
    If the deceased was a tenant, their landlord may hold a security deposit. The estate trustee must ensure that this deposit, including any accrued interest, is returned and deposited into the estate's bank account. The landlord may propose applying the deposit towards any outstanding rent. If so, ...
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  - Mortgages
    
    The estate may also include a mortgage receivable, where the deceased was the lender or mortgagee, and the borrower or mortgagor, owes repayment. In this situation, the estate trustee must:
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  - Entitlements or other debts owed to the deceased
    
    The deceased may have been owed debts or entitlements at the time of death. If a debt is already due, the estate trustee can present a certificate of appointment to the debtor and collect payment on behalf of the estate. The estate trustee should also provide a written direction instructing the ...
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  - Letter to debtor requesting payment of debt
  - Direction to debtor
  - Letter to debtor confirming receipt of payment of debt in full with release
- Canada Pension Plan and private pension benefits
  - Canada Pension Plan
    
    Canada Pension Plan death benefits
    
    The Canada Pension Plan (CPP) is a public pension plan that provides monthly benefits to contributors who have reached retirement age. Under the CPP, when a contributor dies, their estate trustee, surviving spouse or common-law partner, or next of kin can apply for death benefits. Death benefits ...
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    My Service Canada Account (MSCA) – Government of Canada
    
    Canada Pension Plan: Pensions benefits monthly amounts – Government of Canada
    
    Applying for the death benefit
    
    The estate trustee, surviving spouse, or next of kin can apply for the death benefit. Applications must be made within 60 days of the contributor's death. An application can be completed online or using a paper application. An online application is made through the My Service Canada Account ...
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    Application for CPP Death Benefit – Government of Canada
    
    Survivor's pension
    
    A survivor's pension is a monthly benefit paid to the deceased contributor's spouse or common-law partner. To be eligible, the applicant must be:
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    Application for CPP Survivor’s Pension and Surviving Child’s Benefits – Government of Canada
    
    Applying for the children's benefit
    
    Dependant children, or their parent or guardian, can apply for this benefit. The estate trustee normally assists in the application process. An application should be made right after the parent or guardian's death. A delay can result in the loss of benefits.
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    Canada Pension Plan Child’s Benefit Application and Declaration for a Student Over 18 years of Age in Attendance at School or University – Government of Canada
  - Private pension benefits
    
    Private pension benefits
    
    The estate trustee is responsible for handling any private pension benefits payable to the estate, and often helps ensure that payments are made directly to the named beneficiaries, if applicable. To initiate the process, the estate trustee contacts the pension plan provider to:
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    Letter to private pension plan to claim joint and survivor pension benefits
G. Estate information return and estate administration tax refunds and additional payments
- Estate information return
  - Estate information return
    
    An Estate Information Return must be submitted to the Ministry of Finance within 180 days of receiving a certificate of appointment or a small estate certificate: s 3(1) of O. Reg. 310/14 and s 4.1 of the Estates Administration Tax Act 1998. Filing the return is mandatory for all ...
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  - Estate Information Return
  - Filing the return
    
    The return can be filed:
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  - Letter to Minister of Finance to filing estate information return
  - Letter to Minister of Finance filing estate information return when estate value estimated
  - Online Services – Ministry of Finance
  - Amended estate information return
    
    Under s 4(3) of O. Reg. 310/14, if the estate trustee discovers an error or omission in a previously filed estate information return, they must file an amended return within 60 days of becoming aware of the incorrect or incomplete information. This obligation remains in effect until the ...
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  - Warnings, audits, assessments, and appeals
    
    The estate trustee may face fines and, in serious cases, imprisonment, for failing to file the estate information return or for including false or misleading information. The Ministry of Finance has the authority to audit the return and may request supporting documentation to verify the declared ...
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  - Notice of Objection
  - Notice of Objection – Mail in Form – Ministry of Finance
  - Letter to Minister of Finance enclosing notice of objection
- Paying additional estate administration tax
  - Paying additional estate administration tax
    
    New estate assets may be discovered after the certificate of appointment is issued, increasing the total value of the estate and the amount of estate administration tax payable. If additional assets are found after the certificate is issued, the estate trustee must pay the additional tax by filing ...
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  - Affidavit for Estate Administration Tax – Additional Payment/Refund – Ontario Court Services
  - Estate Information Return
  - Letter to Minister of Finance filing amended estate information return
  - Online Services – Ministry of Finance
  - When an estimated estate value was initially provided
    
    If the estate trustee used an estimated estate value in the original application, additional tax may be payable once the actual value of the estate is determined. In that case, the estate trustee must file:
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  - Affidavit
  - Clause - Statement confirming actual value of the estate in fulfillment of an undertaking
  - Letter to Minister of Finance filing amended estate information return in fulfillment of undertaking to court
  - Subsequently discovered property
    
    Under s 32(2) of the Estates Act 1990, if an estate trustee discovers additional assets after a certificate of appointment has been issued, they must file a statement with the court showing the revised value of the estate. The estate trustee has 6 months from the date of discovery to file ...
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- Estate administration tax refunds
  - Estate administration tax refunds
    
    The estate trustee is responsible for claiming a partial refund if estate administration tax is paid in excess of the estate's actual tax liability. Overpayment can occur if estate assets are overvalued or their value was based on an estimate at the time of filing an application for a certificate ...
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  - Partial refunds before the certificate of appointment is issued
    
    Before the certificate of appointment is issued, the estate trustee can file a request for a partial refund with the court where the application was submitted, stating that an error was made in calculating the estate administration tax. The following must be submitted to the court office:
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  - Affidavit for Estate Administration Tax – Additional Payment/Refund – Ontario Court Services
  - Partial refunds after the certificate of appointment is issued
    
    Section 4.5.1 of the Estates Administration Tax Act 1998 outlines the process for obtaining a partial refund from the Ministry of Finance after a certificate of appointment has been issued. Requests must be submitted in writing to the Ministry of Finance, not the court.
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  - Letter to Minister of Finance requesting partial refund of estate administration tax
  - Affidavit
  - Clause - Request for partial refund of estate administration tax
  - Estate Information Return
  - Letter to Minister of Finance filing amended estate information return
  - Online Services – Ministry of Finance
H. Payment to creditors
- Payment to creditors
  
  Before an estate trustee can distribute estate assets to beneficiaries, all debts and taxes owed by the estate must be paid. This section outlines the process for making payments to creditors, which is the collective term for the debt holders. The general rule is that creditors must be paid before ...
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- Estate debts and creditor claims worksheet
- Initial letter to creditor
- Recording payments to creditors
  
  Payments to creditors are typically made by cheque drawn from the estate bank account. Each payment should be accompanied by:
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- Letter to creditor enclosing payment and voucher confirming payment
- Voucher confirming payment of debt in full
- Insolvent estates
  
  An estate is considered insolvent when its debts exceed the total value of its assets. In such cases, the estate trustee pays the estate debts in the following order:
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- Bankrupt estates
  
  If an estate is bankrupt, payment to creditors must follow the priority rules set out in s 136(1) of the Bankruptcy and Insolvency Act 1985. The specific order of payment depends on the circumstances of the estate. As with insolvent estates, reasonable funeral expenses and estate ...
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- Advertising for creditors
  - Advertising for creditors
    
    The estate trustee is responsible for ensuring that all debts of the estate are paid. If the estate trustee distributes estate assets in a way that prejudices a creditor's right to payment, they may be held personally liable. This liability applies to both known creditors and those who were not ...
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  - Letter to estate trustee confirming notice will be published advertising for creditors
  - Letter to estate trustee confirming decision not to advertise for creditors
  - Acknowledgement of estate trustee of decision not to advertise for creditors
  - Where to publish the notice to creditors
    
    Geographic location of residence The notice should be published in the geographic area where the deceased last resided. If the deceased lived in multiple locations across the province, publication should occur in each of those areas.
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  - Recommended content of the notice to creditors
    
    The notice should include the following:
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  - Notice to creditors
- Reviewing creditor claims
  - Reviewing and evaluating creditor claims
    
    All creditor claims received by the estate trustee must be carefully reviewed to determine their legitimacy. If there is any doubt as to whether a debt has already been paid by the deceased, or is valid, the estate trustee should request supporting documentation from the creditor, which may ...
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  - Letter to creditor requesting particulars and supporting documentation to prove claim is valid
  - Letter to creditor requesting sworn affidavit detailing particulars of debt
- Notice of contestation
  - Notice of contestation
    
    Under ss 44 and 45 of the Estates Act 1990, the estate trustee may formally contest both liquidated and unliquidated claims made against the estate by serving the creditor a Notice of Contestation, form 75.13: r 75.08(1). The notice of contestation is an effective tool for estate ...
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  - Notice of Contestation
  - Letter to creditor serving notice of contestation
  - Claim Against Estate
  - Affidavit
  - Affidavit of Service
I. Taxes owing and the Canada Revenue Agency
- Taxes owing and the Canada Revenue Agency
  
  The estate trustee is responsible for filing tax returns and paying any outstanding tax liabilities of the deceased. This may include income tax owed from previous years, as well as taxes for the year of death. Additional tax liabilities may also arise during the administration of the estate. In ...
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- Estate trustee's tax obligations
  
  Under the Income Tax Act 1985, an estate trustee is referred to as a legal representative. As a legal representative, the estate trustee is responsible for administering the deceased's estate, which includes filing the necessary tax returns on behalf of the deceased: s 150(3).
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- Tax returns to file
  
  The estate trustee is responsible for filing the following tax returns with the Canada Revenue Agency on behalf of the deceased:
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- Prepare tax returns for someone who died: What returns you need to file – Government of Canada
- Capital gains tax at death
  
  Under Canadian tax law, death is considered a taxable event and can result in significant tax liability for the deceased's estate. The deemed disposition rules under the Income Tax Act 1985 treat the deceased as having disposed of all capital property immediately before death at its fair market ...
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- Principal residence exemption from capital gains
  
  Under the Income Tax Act 1985, a taxpayer can designate a property as their principal residence. When a property qualifies for this designation, it is eligible for the principal residence exemption, which serves to reduce or eliminate any capital gains tax arising from its sale or deemed ...
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- Rollovers
  
  The Income Tax Act 1985 provides a way to defer the immediate tax liability triggered by the deemed disposition of property on death, called a rollover. A rollover allows a property to be transferred from one person to another without triggering capital gains tax at the time of the transfer. ...
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- Elections to avoid rollover
  
  Although the Income Tax Act 1985 provides rollovers to defer capital gains tax on certain transfers at death, the estate can elect not to apply the rollover in certain cases. Doing so can offer tax advantages. Electing to forego the rollover means the capital gain on the deemed disposition is ...
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- Lifetime capital gains exemption for qualified small business corporation shares
  
  Under ss 110.6(1) and (2.1) of the Income Tax Act 1985, individuals resident in Canada are entitled to a lifetime capital gains exemption on capital gains realized from the disposition of qualified small business corporation shares, up to the specified exemption limit. As of June 25, ...
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- Registered plans and taxes owing
  
  Registered plans are subject to special tax treatment under the Income Tax Act 1985. The tax treatment on the death of the plan holder depends on:
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- Tax-free savings accounts
  
  A Tax-Free Savings Account (TFSA) is a registered investment account that allows individuals with a Social Insurance Number (SIN) to earn income and capital gains tax-free. The individual who has establishes the TFSA is referred to as the holder. Contributions to the TFSA are not tax deductible, ...
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- Clearance certificate before distribution
  
  A clearance certificate is a formal document issued by the Canada Revenue Agency that confirms a taxpayer, either an individual or an estate, has paid all amounts owed, or that may reasonably be expected to become owed, under the Income Tax Act 1985. Under s 159(2) , an estate trustee must ...
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- Apply for a clearance certificate
  - How to apply for a clearance certificate
    
    The steps to apply for a clearance certificate are as follows:
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  - Form TX19 Asking for a Clearance Certificate – Government of Canada
  - List of deceased's assets - Request for clearance certificate
  - List of deceased's assets transferred to a trust - Request for clearance certificate
  - List of deceased's assets distributed to date - Request for clearance certificate
  - Statement of proposed distribution of holdback, residual amount, or property - Request for clearance certificate
  - Beneficiary information - Request for clearance certificate
  - AUT-01 Authorize a Representative for Offline Access – Government of Canada
  - Letter to CRA Audit - Tax Clearance Certificates submitting package for clearance certificate request
  - Sign in to your CRA account – Government of Canada
J. Accounting, executor compensation, and distribution to beneficiaries
- Accounting and distribution to beneficiaries
  
  Once all debts, liabilities, and taxes of the deceased and their estate have been paid, the estate trustee can distribute the estate to the beneficiaries. The estate trustee must first determine whether the remaining assets are sufficient to satisfy all gifts outlined in the will. If they are, the ...
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- Distribution under the terms of the will
  
  The will sets out which beneficiaries receive specific assets or a share of the residue of the estate. In most cases, beneficiaries receive their share by cheque, which is either mailed or made available for pickup. If a specific item of personal property is gifted, the item is delivered to the ...
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- Distribution and the intestacy laws
  
  Distribution of an intestate estate depends on the existence of a spouse or issue. The basic framework under the Succession Law Reform Act 1990 is:
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- Abatement of testamentary gifts to pay creditors
  
  If an estate does not have sufficient assets to pay all debts and testamentary gifts in full, those gifts are subject to abatement, which is a proportional reduction of gifts to ensure that creditors are paid. The rules of abatement were developed at common law and apply to the administration of ...
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- Accounts
  - Accounts
    
    The estate trustee owes fiduciary duties to all beneficiaries and creditors of an estate. As a fiduciary, the estate trustee is required to administer the estate properly and fairly, and transparently. One of the most significant fiduciary duties is the duty to keep proper accounts: see Pinard et ...
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  - Informal accounting
    
    Informal accounting
    
    An informal accounting is typically presented as a spreadsheet accompanied by a summary letter addressed to each beneficiary. It outlines key financial information about the estate's administration, including:
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    Letter to beneficiary accompanying informal accounting
    
    Estate accounting - Informal accounting spreadsheet
    
    Proposed distribution plan - Informal accounting
    
    Release - Informal accounting
    
    Letter to the office of the public guardian and trustee with informal accounting and proposed distribution plan
  - Formal accounting
    
    Formal accounting
    
    Formal accounting is a detailed, itemized breakdown of every asset, liability, receipt, investment, expense, and disbursement incurred during the administration of the estate over a defined period. Formal accounting is required in 2 situations:
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    The form of accounts under rule 74.17
    
    Rule 74.17 sets out the required format for preparing estate accounts. The estate trustee must maintain accurate and complete records, and these must be included in the formal accounts provided to beneficiaries and the court when seeking to pass accounts. The required components of the estate ...
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    Letter to beneficiary providing copy of formal accounting
    
    Passing of accounts and formal accounting
    
    Passing accounts is a formal court audit of the estate trustee's financial administration of the deceased's estate. In this process, the court acts as an auditor, ensuring that all estate assets have been properly accounted for, disbursements have been accurately made, appropriate vouchers and ...
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- Executor compensation
  - Executor compensation
    
    Executor compensation refers to the remuneration an estate trustee receives for administering a deceased's estate. Under s 61(1) of the Trustee Act 1990, an estate trustee is entitled to fair and reasonable compensation for the attention required in administering the deceased's estate.
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  - Letter to client advising they are entitled to executor compensation
  - Care and management fees
    
    If the administration of an estate continues for more than 1 year, the estate trustee can also claim a care and management fee. This fee is 2/5 of 1% per annum of the gross value under administration. Courts do not allow annual care and management fees unless estate trustees hold assets for ...
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  - Tax payable on compensation
    
    Executor compensation is considered taxable income. As such, the estate trustee must report any compensation received for administering the estate as income on their personal income tax return.
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- Distribution to beneficiaries
  - Distribution to beneficiaries
    
    Distribution of the estate to beneficiaries typically occurs near the end of the estate administration process. There are 2 key considerations that may require the estate trustee, and the lawyer assisting with the administration, to delay distribution.
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  - Delaying distribution
    
    Intestacy If the deceased died intestate, distribution must be postponed for 1 year in accordance with s 26 of the Estate Administration Act 1990, unless an exception applies.
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  - Letter to beneficiary enclosing specific bequest
  - Letter to beneficiary with distribution of residue
  - Letter to beneficiary with general distribution
  - Letter to beneficiary with general distribution - Intestacy
  - Acknowledgement of receipt of personal effects and release
  - Acknowledgement of receipt of legacy and release
  - Acknowledgement of receipt of specific bequest and release
  - Acknowledgement of receipt of gift of funds and release
  - Acknowledgement and release - Interim distribution
  - Acknowledgement and release - Final distribution
  - Release and indemnity
  - Statement of assets, liabilities and distribution
  - Interim distribution
    
    Interim distribution
    
    If the estate trustee is absolutely certain that the estate is solvent and has sufficient estate assets to satisfy all debts, liabilities, and taxes, they may make an interim or partial distribution to beneficiaries. However, the trustee should proceed with caution. They are personally responsible ...
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    Letter to beneficiary with interim distribution
    
    Acknowledgement and release - Interim distribution
    
    Letter to beneficiary on interim distribution enclosing statement for approval
    
    Statement of assets, liabilities and distribution
  - Final distribution
    
    Final distribution
    
    After all estate debts, liabilities, and taxes have been paid in full, and while waiting for a clearance certificate from the Canada Revenue Agency, the estate trustee can proceed with the final distribution of the estate. At this stage, the trustee can transfer or release the remaining estate ...
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    Letter to beneficiary with final distribution
    
    Acknowledgement and release - Final distribution
  - Distribution of holdback after receipt of clearance certificate
    
    Distribution of holdback after receipt of the clearance certificate
    
    Once the estate trustee receives the clearance certificate from the Canada Revenue Agency, the estate trustee should promptly distribute the remaining estate balance to the beneficiaries. As long as the estate trustee retains control of any undistributed estate assets, they remain responsible in ...
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    Letter to client with final accounts and distribution - After the notice to creditors
    
    Statement of assets, liabilities and distribution
    
    Letter to beneficiary with distribution of holdback
    
    Release and indemnity
  - Deeds of release and indemnity library
    
    Deed of release and indemnity - No certificate of appointment
    
    Deed of release and indemnity - Intestacy - No certificate of appointment
    
    Deed of release and indemnity - Distribution without notice of claims
    
    Deed of release and indemnity - Intestacy - Distribution without notice of claims
    
    Deed of release and indemnity - Distribution with notice of claims
    
    Deed of release and indemnity - Intestacy - Distribution with notice of claims
    
    Deed of release and indemnity - Executors compensation
    
    Deed of release and indemnity - Intestacy - Estate trustee's compensation
K. Estate litigation matters
- Estate litigation matters
  
  In most instances, the Rules of Civil Procedure state that a person who appears to have a financial interest in an estate has standing to bring an application or motion. At a minimum, this includes both beneficiaries and contingent beneficiaries, as they clearly have a financial interest in the ...
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- Practice directions
  
  Both provincial and regional practice directions apply to estate matters in Ontario. The Ontario Superior Court of Justice's Consolidated Civil Procedure Practice Direction applies to all civil court proceedings, including estate matters, unless stated otherwise.
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- Delays
  
  Delays in the administration of the estate may occur when the person named as the estate trustee in the will refuses or fails to act, potentially jeopardizing estate assets and prejudicing beneficiaries' interests. Under r 74.15(1) of the Rules of Civil Procedure, a person with a financial ...
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- Letter serving documents in estate litigation matters - Generic
- Passing of accounts
  - Passing of accounts
    
    The passing of accounts is a court process in which the estate trustee submits formal accounts for review and approval. These accounts are provided to beneficiaries, their lawyers, and, in some cases, creditors. The process ensures transparency and allows for judicial oversight of estate ...
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  - Notice of Application to Pass Accounts
  - Affidavit Verifying Estate Accounts
  - Judgment on Unopposed Passing of Accounts
  - Judgment on Contested Passing of Accounts
  - Schedule to draft judgment listing estate assets still to be distributed
  - Affidavit of Service
  - Lawyer's Certificate of Service
  - Notice of Objection to Accounts
  - If required - Responding to the notice of application
    
    Responding to the notice of application
    
    A person who has been served with a notice of application to pass accounts may respond by serving and filing one of the following:
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    Responding by notice of objection to accounts
    
    A person, or their representative, who has received notice of the application may respond by serving and filing a Notice of Objection to Accounts, form 74.45, in accordance with r 74.18(7). The Notice of Objection to Accounts, form 74.45, must be:
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    Notice of Objection to Accounts
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Reply to Notice of Objection to Accounts
    
    Notice of Withdrawal of Objection
    
    Request for Further Notice in Passing of Accounts
    
    Notice of No Objection to Accounts
    
    Notice of Non-Participation in Passing of Accounts
    
    Request for Costs (Person other than Children’s Lawyer or Public Guardian and Trustee)
    
    Request for Costs (Children’s Lawyer or Public Guardian and Trustee)
  - If required - Application record when no hearing is required
    
    Application record when no hearing is required
    
    When no hearing is required, the applicant must file an application record in accordance with r 74.18(9). The application record must include:
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    Application record - No hearing is required
    
    Affidavit in Support of Unopposed Judgment on Passing of Accounts
    
    Request for Increased Costs (Estate Trustee)
    
    Request for Increased Costs (Person other than Estate Trustee)
    
    Lawyer's certificate confirming application record is complete
    
    Judgment on Unopposed Passing of Accounts
  - If required - Application record when hearing is required
    
    Application record when a hearing is required to pass accounts
    
    Under r 74.18(11.7), if the application to pass accounts proceeds to a hearing, the applicant must file an application record with the court at least 5 days before the hearing date. The application record must include the following documents:
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    Application record - Hearing required
    
    Judgment on Contested Passing of Accounts
- Notice of objection
  - Notice of objection
    
    At any time before the court issues a certificate or appointment, any person who has a financial interest in the estate may file a Notice of Objection, form 75.1, to object to the issuance of a certificate of appointment with or without a will: r 75.03(1). The objector must set out the ...
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  - Notice of Objection
  - Notice to Objector
  - Affidavit of Service
  - Lawyer's Certificate of Service
  - Notice of Appearance - Form 75.4
  - Letter to objector's lawyer requesting details of reasons for objection
  - Letter to client regarding a notice of objection
  - Letter to objector's lawyer with response to objections
  - Letter to objector's lawyer serving notice to objector
- Application or motion for directions
  - Application or motion for directions
    
    Rule 75.06 allows any person who appears to have a financial interest in an estate to seek directions from the court. In the context of an estates dispute, this rule gives the court broad authority to issue procedural directions to the parties. If there is no existing proceeding, an interested ...
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  - Filing of application or motion for directions
    
    An application or motion for directions can be filed in person at the court office or online using the Civil Submissions Online portal. Parties are encouraged to file documents online rather than in person. The filing fees can be paid through the portal directly, without the need to attend the ...
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  - Filing Electronic Documents in Estates Litigation Proceedings – Ontario Court Services
  - Notice of application for directions
    
    Notice of application for directions
    
    An application for directions is commenced using Notice of Application for Directions, form 75.5. The notice must be served on all persons who appear to have a financial interest in the estate at least 10 days before the hearing date: r 75.06(2). An Affidavit, form 4D, and all ...
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    Notice of Application for Directions
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Application record - Rule 38.09(2)
    
    Order Giving Directions
    
    Letter to court with memo to court staff regarding a submission - Application for directions
    
    Confirmation of Application
    
    Responding to the application
    
    Responding to the application
    
    A party who is served with a notice of application may file a Notice of Appearance, form 38A, to indicate their intention to respond to the application: r 38.07(1). The responding party can also serve on the applicant, and file with the court, any supporting affidavits, using a ...
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    Notice of Appearance
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Respondent's application record - Rule 38.09(3.1)
  - Notice of motion for directions
    
    Notice of motion for directions
    
    A motion for directions is made using a Notice of Motion for Directions, form 75.6. The notice must be served on all persons who appear to have a financial interest in the estate at least 10 days before the hearing date: r 75.06(2). An Affidavit, form 4D, and all other ...
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    Notice of Motion for Directions
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Motion record - Rule 37.10(2)
    
    Order Giving Directions
    
    Letter to court with memo to court staff regarding a submission - Motion for directions
    
    Confirmation of Motion
    
    If required - Responding to the motion
    
    Responding to the motion
    
    The responding party can serve on the moving party and file with the court any supporting affidavits, using an Affidavit, form 4D, and evidence they intend to rely on at the motion hearing. These documents must be served and filed, along with proof of service, using form 16B, an Affidavit ...
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    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Responding party's motion record - Rule 37.10(3)
- Application to prove a testamentary instrument
  - Application to prove a testamentary instrument
    
    If there are issues surrounding whether a document purporting to be the deceased's last will is a valid testamentary instrument, a person with a financial interest in the estate can bring an application under r 75.06 to have the document proved as the deceased's last will: r 75.01. There ...
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  - Notice of Application for Directions
  - Order Giving Directions
  - Affidavit
  - Clause - Affidavit of consent - Proof of copy of will's contents
  - Affidavit of Service
  - Lawyer's Certificate of Service
  - Application record - Rule 38.09(2)
  - Letter to court with memo to court staff regarding a submission - Application to prove a testamentary instrument
- Challenging the validity of a will
  - Challenging the validity of a will
    
    A challenge to a will concerns its validity, not the fairness of its terms. If a surviving spouse or dependant wishes to commence estate litigation regarding their entitlement to the deceased's estate, see Statutory based estate litigation.
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  - Grounds for alleging a will is invalid
    
    Common grounds for challenging the validity of a will include:
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  - Commencing proceedings to challenge the validity of a will
    
    The 2 year basic limitation period under s 4 of the Limitations Act 2002 applies to will challenges. An ultimate limitation period of 15 years also applies to bar any actions: s 15. Generally, the limitation period may begin to run from the date of death if the cause of action ...
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  - Statement of Claim (General)
  - Information for Court Use
- Application to revoke a certificate of appointment
  - Application to revoke a certificate of appointment
    
    Any person with a financial interest in the estate can apply to the court to revoke the certificate of appointment of an estate trustee under r 75.04. This applies to certificates issued using:
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  - Notice of Application for Directions
  - Order Giving Directions
  - Affidavit
  - Affidavit of Service
  - Lawyer's Certificate of Service
  - Application record - Rule 38.09(2)
  - Letter to court with memo to court staff regarding a submission - Application to revoke a certificate of appointment
  - Confirmation of Application
- Motion for orders for assistance
  - Motion for orders for assistance
    
    Although not explicitly a contentious proceeding, orders for assistance under r 74.15 allow any person who appears to have a financial interest in an estate to bring a motion for a court order to resolve issues arising before, during, or after the issuance of a certificate of appointment. This ...
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  - Notice of Motion
  - Order in an Estates Proceeding
  - Backsheet
  - Affidavit
  - Letter to court with memo to court staff regarding a submission - Motion for orders for assistance
  - Confirmation of Motion
  - If required - Service of motion for orders for assistance
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
- Statutory based estate litigation
  - Statutory based estate litigation
    
    Estate litigation may arise as a consequence of a spouse or dependant's claim against the estate for an equalization payment or a support order. In this regard, estate litigation can include:
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  - Equalization claims under the Family Law Act 1990
    
    Equalization claims under the Family Law Act 1990
    
    Under the Family Law Act 1990, a surviving married spouse can make a property division claim against the deceased spouse's estate based on the equalization of net family property. Section 5(2) provides:
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    Election by surviving spouse
    
    Under s 6(1), a surviving spouse can elect to receive either:
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    Election of Surviving Spouse
    
    Letter to court estate registrar filing election of surviving spouse
  - Dependant’s claims under the Succession Law Reform Act 1990
    
    Dependant's claims under the Succession Law Reform Act 1990
    
    Part V of the Succession Law Reform Act 1990 permits the dependants of a deceased person to claim support from the deceased's estate. This type of claim is known as dependant's relief. An order for support in favour of the dependant takes precedence over the terms of the deceased's will and, ...
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    Making the application for dependant's relief
    
    A dependant's relief claim is commenced by way of an application under r 38 of the Rules of Civil Procedure and is filed in the Superior Court of Justice. To start the claim, the applicant must file the following documents:
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    Notice of Application
    
    Information for Court Use
    
    Affidavit
    
    Financial Statement (Support Claims)
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Application record - Rule 38.09(2)
    
    Factum
    
    Confirmation of Application
    
    If required - Responding to application
    
    Notice of Appearance
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Respondent's application record - Rule 38.09(3.1)
    
    Factum
- Mandatory mediation in estate litigation disputes
  - Mandatory mediation in estate litigation disputes
    
    Rule 75.1 of the Rules of Civil Procedure mandates mediation in certain estate matters commenced in the following locations:
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  - Request for Assignment of Mediator
  - Notice by Mediator
  - Statement of Issues - Form 75.1C
  - Certificate of Non-compliance
  - Motion for directions regarding mediation
    
    Motion for directions regarding mediation
    
    Under r 75.1.05, the applicant must bring a motion for directions within 30 days after the last day to serve a notice of appearance. The motion is made under the same process used for motions under r 75.06. The court may give directions on:
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    Notice of Motion for Directions
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Motion record - Rule 37.10(2)
    
    Order Giving Directions
    
    Confirmation of Motion
L. Finalizing the matter
- Finalizing the matter
  
  Following the distribution of the estate, a final letter to the estate trustee reporting on the matter and enclosing their documents should be sent to finalize the matter. If the firm is not acting on the administration, after obtaining the certificate of appointment of estate trustee, the ...
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- Letter to client finalizing the matter - Concise - Appointment of an estate trustee with a will
- Letter to client finalizing the matter - Extensive - Appointment of an estate trustee with a will
- Invoice recital - Probate
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Appointment of an Estate Trustee Without a Will (ON)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
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- Electronic Signing and Remote Witnessing
- Further information
Overview

This commentary addresses issues related to intestacy and outlines the complete estate administration process from start to finish. It provides a clear explanation of how estates are administered under Ontario's intestacy laws to minimize confusion and prevent disputes. A sequential guide is ...
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A. Getting the matter underway
- File cover sheet - Estate administration
- To do list - Appointment of an estate trustee without a will
- First steps
- Client details, verification, and source of funds
- Retainer instructions - Estate administration
- Conflict of interest check
- Initial letter to client enclosing retainer agreement - Appointment of an estate trustee with a will
- Retainer agreement - Ontario
- Scope of work - Estate administration
- Estate information worksheet - Appointment of estate trustee without a will
- Estate assets information worksheet
- Estate debts information worksheet
- Interests in the estate worksheet
- Deadlines for estate information return and income tax filings
- If required - Authority previous lawyer
  - Letter to previous lawyer with authority to obtain documents
  - Authority to obtain documents from previous lawyer
- If required - Application for a death certificate
  - Get or replace an Ontario death certificate – Government of Ontario
  - Online Certificate Application – ServiceOntario
- Time and costs estimates
- If required - Updating costs disclosure and non-engagement
  - Letter to client updating costs disclosure
  - Letter to client advising non-engagement
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Confidentiality deed
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment clause
    
    Confidentiality clause for defined information - All parties
    
    Confidentiality clause for defined information - One party
    
    Confidentiality clause for terms of agreement - All parties
    
    Confidentiality clause for terms of agreement - One party
    
    Costs clause
    
    Counterparts clause
    
    Dispute resolution clause
    
    Events beyond control clause
    
    Governing law and jurisdiction clause
    
    Interpretation clause
    
    No assignment clause
    
    Notices clause
    
    Severance clause
    
    Waiver clause
    
    Whole agreement clause
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment clause
    
    Confidentiality clause for defined information - All parties
    
    Confidentiality clause for defined information - One party
    
    Confidentiality clause for terms of agreement - All parties
    
    Confidentiality clause for terms of agreement - One party
    
    Costs clause
    
    Counterparts clause
    
    Dispute resolution clause
    
    Events beyond control clause
    
    Governing law and jurisdiction clause
    
    Interpretation clause
    
    No assignment clause
    
    Notices clause
    
    Severance clause
    
    Waiver clause
    
    Whole agreement clause
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
  - Statutory declaration
    
    Statutory declaration
  - Standard annexure note for documents
B. Preliminary considerations
- Preliminary considerations
  
  Client engagement In estate administration matters, the client is the estate trustee, not the estate itself, the deceased, or the beneficiaries, unless a beneficiary is also acting as the estate trustee.
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- Procedural checklist for first meeting with the estate trustee
- Steps in the administration process
  
  An estate trustee is responsible for carrying out the administration of the deceased's estate. The key steps in the administration process include the following:
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- Letter to estate trustee client enclosing summary of process and estate administration worksheets
- Information sheet - Estate assets to consider when preparing for administration
- Information sheet - Estate debts to consider when preparing for administration
- Information sheet - Organizing estate documents and records
- Information sheet - Who to notify during estate administration
- Estate trustee's legal duties
  
  An estate trustee owes significant duties and responsibilities in the administration of an estate. These include not only practical tasks, such as locating assets, paying debts, and filing tax returns, but also important legal obligations arising from statute and common law. As estate trustee who ...
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- Letter to estate trustee client enclosing legal duties information sheet
- Information sheet - The estate trustees legal duties
- Funeral arrangements
  
  The estate trustee is responsible for arranging the deceased's funeral. Funeral expenses must be reasonable, taking into account the overall value of the estate. The estate trustee should also exercise caution when choosing a headstone or gravestone, as some case law suggests that the cost of a ...
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- Intestacy
  
  Intestacy arises when a person dies without a valid will. A partial intestacy occurs when the deceased leaves a valid will that fails to dispose of all their assets. In such cases, the distribution of the estate, or the undisposed portion, is governed by the rules of intestacy set out in the ...
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- Delaying distribution of the estate
  
  There are 2 key considerations that may require the estate trustee and the lawyer handling the estate matter to delay the distribution of the estate:
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- Letter to surviving spouse advising of right to make an election when not applicant for certificate
- Letter to surviving spouse advising of right to make an election when applicant for certificate
- Beneficiaries of an intestate estate - Consent to apply for appointment
  - Distribution of an intestate estate
    
    Distribution of an intestate estate depends on the existence of a spouse and children, also known as issue. The basic framework under the Succession Law Reform Act 1990 is:
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  - Initial letter to beneficiary - Application on intestacy
  - Initial letter to beneficiary on intestacy where other beneficiaries are unknown
  - Information sheet - Summary of beneficiaries entitled to the estate on intestacy
  - Letter to beneficiary requesting consent to application for a certificate of appointment of estate trustee without a will
  - Renunciation and Consent
  - Affidavit
- If required - Searching for a will
  - Letter to previous lawyer searching for a will
  - Advertisement - Searching for a will
- If required - Renunciation
  - Applicants without a will
    
    A person can apply for a certificate of appointment of estate trustee without a will if they:
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  - Letter to person renouncing entitlement to apply for appointment of estate trustee on intestacy
  - Letter to person renouncing enclosing renunciation form for person entitled to apply for a certificate of appointment who is not applying
  - Renunciation and Consent
- If required - Declaration of death
  - Presumption of death
    
    When it is uncertain whether a testator, executor, beneficiary, or intestate individual is deceased, the Declarations of Death Act 2002 allows an interested person to apply to the Superior Court of Justice for an order declaring the individual dead: s 2(1). An application for a declaration of ...
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  - Notice of Application
  - Information for Court Use
  - Affidavit of Service
C. Preparing to apply for a certificate of appointment
- When a certificate of appointment is required
  
  A certificate of appointment is a court issued document confirming that the estate trustee has the legal authority to act on behalf of the deceased and administer their estate. An estate trustee is required to act reasonably and to incur only those expenses necessary for the proper administration ...
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- Estate information worksheet - Appointment of estate trustee without a will
- Type of certificate of appointment required
  
  Depending on the circumstances, different types of certificates of appointment may be appropriate. While each certificate has its own application requirements, all serve the common purpose of providing third parties with legal reassurance that the estate trustee is lawfully authorized to act on ...
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- Distribution without a certificate of appointment
  
  In situations where third parties are willing to transfer or release all of the deceased's assets to the estate trustee without requiring a certificate of appointment, the estate trustee should nonetheless take steps to protect themselves from potential liability. An estate trustee who distributes ...
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- Release and indemnity - Distribution to beneficiary without a certificate of appointment
- Deed of release and indemnity - No certificate of appointment
- Determining if third parties require the certificate of appointment
  - Determining if third parties require the certificate of appointment
    
    To determine whether a certificate of appointment is required before a third party will transfer or release the deceased's assets to the estate trustee, the best practice is for the lawyer to send a written request directly to the third party holding the assets. The letter should:
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  - Letter to third party to determine whether a certificate of appointment is required
  - Certificate of notarial copy
- Valuing estate assets
  - Valuing estate assets
    
    Valuing the assets of an estate is necessary to determine the:
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  - Information sheet - Estate assets to consider when preparing for administration
  - Estate assets information worksheet
  - Real property
    
    The total value of the estate includes real property located in Ontario that was owned by the deceased:
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  - Personal property
    
    Certain personal property assets are excluded from the value of the estate, including:
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  - Letter to third party requesting information about the deceased's assets
  - Certificate of notarial copy
  - Banks and financial institutions
    
    Bank accounts and other financial account assets
    
    If the estate trustee is aware of bank accounts and investments held by the deceased, they may contact the relevant financial institutions directly to request information. However, in most cases, the lawyer acting for the estate trustee prepares and sends a formal letter to each bank or financial ...
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    Letter to bank requesting account and investment information
    
    Certificate of notarial copy
  - Investment accounts and registered plans
    
    Investments in publicly traded stocks
    
    Information about publicly traded stocks held by the deceased can typically be obtained by contacting the deceased's stockbroker or investment advisor. This is usually done through a formal letter prepared by the lawyer acting for the estate trustee, requesting full details of all stock holdings. ...
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    Letter to stockbroker or investment advisor requesting investment information
    
    Letter to registered plan holder requesting registered plan information
    
    Certificate of notarial copy
  - Insurance policies
    
    Insurance
    
    Information about insurance policies held by the deceased can be obtained by contacting the relevant insurance company. A formal request letter, similar to those sent to banks or financial institutions, can be prepared by the lawyer acting for the estate trustee and submitted to the insurer. ...
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    Letter to insurance company requesting policy information
    
    Certificate of notarial copy
  - Personal effects, collections, furniture, and jewellery
    
    Personal collections
    
    If the deceased owned a personal collection of artwork or other valuable items, the estate trustee may engage the services of an on-site estate appraiser. The appraiser attends the location where the collection is stored and prepares a formal appraisal report, which typically includes a description ...
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    Household furniture
    
    The estate must assign a fair market value to the deceased's household furniture. In many cases, a nominal value is attributed to standard household furniture. However, if the deceased's furniture appears to be valuable, the estate trustee should consider obtaining a professional appraisal. A ...
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    Personal effects and jewellery
    
    The deceased's personal effects include clothing and jewellery. Generally, the estate trustee assigns a nominal value to personal effects, particularly clothing, given their limited resale value. However, for jewellery, it is important to obtain a professional appraisal to determine its fair market ...
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    Letter requesting information about appraisal services for personal property
    
    Appraisal Institute of Canada - Ontario
  - Employment and other entitlements and debts
    
    Entitlements or other debts owed to the deceased
    
    The estate trustee must determine whether any debts or entitlements are payable to the deceased and, if so, establish their value. A debt may include amounts such as unpaid wages for work performed prior to death, while an entitlement could include accrued vacation pay, bonuses, or other employment ...
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    Letter to employer requesting information about amounts or entitlements owed
    
    Letter to debtor requesting information about debts owed
    
    Certificate of notarial copy
    
    Business interests
    
    The deceased may have held business interests that must be included in the value of the estate. These interests could have been held through a variety of business structures, including:
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    Letter requesting information about business interests
- Library of initial letters to asset holders
  - Initial letter to bank
  - Initial letter to corporation for debenture particulars
  - Initial letter to corporation or registry for share particulars
  - Initial letter to deceased's accountant
  - Initial letter to deceased's employer
  - Initial letter to health insurance company
  - Initial letter to insurance company requesting details of bonds
  - Initial letter to lender requesting mortgage details and transfer requirements
  - Initial letter to life insurance company for policy details
  - Initial letter to pension fund company
  - Initial letter to retirement home
  - Initial letter to ServiceOntario re licence and motor vehicle
  - Initial letter to stockbroker requesting portfolio details
  - Initial letter general cancellation of membership
- Estate administration tax
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Letter to bank requesting release of funds for payment of estate administration tax
  - Letter to investment company requesting release of funds for payment of estate administration tax
  - Certificate of notarial copy
  - If required - Paying based on estimated value
    
    Paying the tax based on an estimated value of the estate
    
    When the estate trustee is unable to determine the actual value of the estate at the time of filing the application, it is possible to pay the estate administration tax based on an estimated value of the estate: s 4(3) of the Estate Administration Tax Act 1998 and r 74.13(2) of the Rules ...
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    Undertaking to file sworn statement of the actual value of the estate
  - If required - Requesting deferral
    
    Requesting a deferral of payment
    
    Under s 4 of the Estate Administration Tax Act 1998, an applicant for a certificate of appointment can seek a court order to defer payment of estate administration tax. A judge has the authority to grant the deferral order if all the conditions set out in s 4(2) are satisfied, including:
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    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
- If required - Bonds of indemnity
  - Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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  - Who can act as a surety
    
    Both individuals and bonding companies can act as sureties. In accordance with r 74.11 of the Rules of Civil Procedure, the following third parties can be a surety:
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Amount of the bond and the number of sureties
    
    A judge of the Superior Court of Justice has the authority to determine the bond requirements for an application for a certificate of appointment. Unless the court orders otherwise, the amount of the bond must be double the amount of the value of the estate: s 37(1) of the Estates Act 1990. ...
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  - Waive, dispense, or reduce bond requirement
    
    Spousal request to waive bond requirement
    
    An applicant spouse who was married to the deceased may request a waiver of the bond requirement by filing, along with the application for a certificate of appointment, an Affidavit, form 4D, that:
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    Affidavit
    
    Clause - Affidavit of spouse to request waiver of bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Under r 74.11(5) of the Rules of Civil Procedure, an applicant can request an order under s 37(2) of the Estates Act 1990 to dispense with the requirement to provide a bond, or to reduce the bond amount, on consent and without bringing a motion. This option is available only if:
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    Letter to beneficiary requesting consent to dispense with bond requirement
    
    Renunciation and Consent
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
    
    Motion to dispense with or reduce bond requirement
    
    Request by motion to dispense with or reduce bond requirement
    
    A request to dispense with the requirement to provide a bond, or to reduce the bond amount under s 37(2) of the Estates Act 1990, can be made by motion in accordance with the r 37 motions procedure: see r 74.11(4). The motion may be brought before, with, or after the application for ...
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    Notice of Motion
    
    Affidavit
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit of Service
- If required - Notice of commencement of proceeding
  - Notice of commencement of proceeding
    
    Under r 74.03(1) of the Rules of Civil Procedure, a person with a financial interest in an estate can file a Request for Notice of Commencement of Proceeding with the estate registrar. This request entitles the person to receive notice of any legal proceeding commenced in relation to the ...
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  - Request for Notice of Commencement of Proceeding
D. The application process for each type of certificate of appointment
- Applying for a certificate of appointment
  
  When a certificate of appointment is required to transfer or release the deceased's assets, the estate trustee must apply for one. The application process is governed by r 74 of the Rules of Civil Procedure, which outlines the procedure for non-contentious estate proceedings. The applicable ...
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- Who is entitled to apply
  
  The person entitled to apply for a certificate of appointment depends on whether the deceased died with a will or intestate. This must be considered alongside whether the applicant will be required to post a bond of indemnity, as requirements vary. See When a bond is required or waived.
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- Practice directions
  
  Both provincial and regional practice directions apply to estate matters in Ontario. The Ontario Superior Court of Justice's Consolidated Civil Procedure Practice Direction applies to all civil court proceedings, including estate matters, unless stated otherwise.
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- Small estate certificate
  - Small estate certificate
    
    The documents to file in an application for a small estate certificate are set out in r 74.1.03(1) and include:
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  - Application for a Small Estate Certificate
  - Request to File an Application for a Small Estate Certificate or an Amended Small Estate Certificate
  - Small Estate Certificate
  - Backsheet
  - Affidavit
  - Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Ontario government
  - Renunciation and Consent
  - Letter to person entitled to apply for small estate certificate enclosing renunciation form
  - Letter to beneficiary requesting consent to application for small estate certificate
  - Who must be served notice of the application
    
    The applicant must provide notice of the application to all beneficiaries entitled to a share in the distribution of the estate, including contingent beneficiaries and any organizations or institutions entitled to a distribution, such as charities: r 74.1.03(3). Notice must include:
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  - Letter to court enclosing application for small estate certificate
  - If required - Deferral of Estate Administration Tax or payment based on estimate
    
    Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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    Requesting a deferral
    
    Requesting a deferral of payment
    
    Under s 4 of the Estate Administration Tax Act 1998, an applicant for a certificate of appointment can seek a court order to defer payment of estate administration tax. A judge has the authority to grant the deferral order if all the conditions set out in s 4(2) are satisfied, including:
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    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
    
    Paying based on estimated value
    
    Paying the tax based on an estimated value of the estate
    
    When the estate trustee is unable to determine the actual value of the estate at the time of filing the application, it is possible to pay the estate administration tax based on an estimated value of the estate: s 4(3) of the Estate Administration Tax Act 1998 and r 74.13(2) of the Rules ...
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    Undertaking to file sworn statement of the actual value of the estate
  - If required - Waive, dispense, or reduce bond requirement
    
    Spousal request to waive bond requirement
    
    An applicant spouse who was married to the deceased may request a waiver of the bond requirement by filing, along with the application for a certificate of appointment, an Affidavit, form 4D, that:
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    Affidavit
    
    Clause - Affidavit of spouse to request waiver of bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Under r 74.11(5) of the Rules of Civil Procedure, an applicant can request an order under s 37(2) of the Estates Act 1990 to dispense with the requirement to provide a bond, or to reduce the bond amount, on consent and without bringing a motion. This option is available only if:
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    Letter to beneficiary requesting consent to dispense with bond requirement
    
    Renunciation and Consent
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
    
    Motion to dispense with or reduce bond requirement
    
    Request by motion to dispense with or reduce bond requirement
    
    A request to dispense with the requirement to provide a bond, or to reduce the bond amount under s 37(2) of the Estates Act 1990, can be made by motion in accordance with the r 37 motions procedure: see r 74.11(4). The motion may be brought before, with, or after the application for ...
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    Notice of Motion
    
    Affidavit
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit of Service
  - Common errors when completing the forms
    
    Common errors when completing the forms – Small estate certificate
    
    Forms submitted with an application may be returned with a Registrar's Notice if they are incomplete or contain incorrect information. This can lead to unnecessary delays and added expense. To avoid such outcomes, each form should be carefully prepared, reviewed, and re-reviewed before filing. ...
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    Schedule to form 74.1A - Information about the deceased's relationships
- Amended small estate certificate
  - Amended small estate certificate
    
    If additional assets are discovered after a small estate certificate is issued, and the total value of the estate remains at or below $150,000, the estate trustee named in the certificate may apply to amend the certificate to include the newly discovered assets. Only the estate trustee named in the ...
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  - Application to Amend Small Estate Certificate
  - Request to File an Application for a Small Estate Certificate or an Amended Small Estate Certificate
  - Amended Small Estate Certificate
  - Letter to court enclosing application for amended small estate certificate
- Certificate of appointment of estate trustee without a will
  - Certificate of appointment of estate trustee without a will
    
    The documents to file in an application for a certificate of appointment of estate trustee without a will are set out in r 74.04(1) and include:
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  - Application for a Certificate of Appointment of Estate Trustee
  - Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee
  - Lawyer’s Certificate of Service of Application for a Certificate of Appointment of Estate Trustee
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Renunciation and Consent
  - Letter to beneficiary requesting consent to application for a certificate of appointment of estate trustee without a will
  - Letter to person renouncing enclosing renunciation form for person entitled to apply for a certificate of appointment who is not applying
  - Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Ontario government
  - Who must be served with a copy of the application in an intestacy
    
    A Notice of an Application for the Appointment of Estate Trustee Without a Will must be served on all persons entitled to share in the deceased's estate: r 74.04(1). The law of intestacy determines the beneficiaries of an intestate estate and, therefore, who must be served notice of the ...
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  - Letter to court enclosing application for certificate of appointment of estate trustee without a will
  - If required - Deferral of Estate Administration Tax or payment based on estimate
    
    Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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    Requesting a deferral
    
    Requesting a deferral of payment
    
    Under s 4 of the Estate Administration Tax Act 1998, an applicant for a certificate of appointment can seek a court order to defer payment of estate administration tax. A judge has the authority to grant the deferral order if all the conditions set out in s 4(2) are satisfied, including:
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    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
    
    Paying based on estimated value
    
    Paying the tax based on an estimated value of the estate
    
    When the estate trustee is unable to determine the actual value of the estate at the time of filing the application, it is possible to pay the estate administration tax based on an estimated value of the estate: s 4(3) of the Estate Administration Tax Act 1998 and r 74.13(2) of the Rules ...
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    Undertaking to file sworn statement of the actual value of the estate
  - If required - Waive, dispense, or reduce bond requirement
    
    Spousal request to waive bond requirement
    
    An applicant spouse who was married to the deceased may request a waiver of the bond requirement by filing, along with the application for a certificate of appointment, an Affidavit, form 4D, that:
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    Affidavit
    
    Clause - Affidavit of spouse to request waiver of bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Under r 74.11(5) of the Rules of Civil Procedure, an applicant can request an order under s 37(2) of the Estates Act 1990 to dispense with the requirement to provide a bond, or to reduce the bond amount, on consent and without bringing a motion. This option is available only if:
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    Letter to beneficiary requesting consent to dispense with bond requirement
    
    Renunciation and Consent
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
    
    Motion to dispense with or reduce bond requirement
    
    Request by motion to dispense with or reduce bond requirement
    
    A request to dispense with the requirement to provide a bond, or to reduce the bond amount under s 37(2) of the Estates Act 1990, can be made by motion in accordance with the r 37 motions procedure: see r 74.11(4). The motion may be brought before, with, or after the application for ...
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    Notice of Motion
    
    Affidavit
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit of Service
  - Common errors when completing the application in an intestacy
    
    Common errors when completing the application in an intestacy
    
    Forms submitted with an application may be returned with a Registrar's Notice if they are incomplete or contain incorrect information. This can lead to unnecessary delays and added expense. To avoid such outcomes, each form should be carefully prepared, reviewed, and re-reviewed before filing. ...
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    Schedule to Form 74A - Information about the deceased's relationships
- Court status certificate - Confirmation of estate trustees
  - Court status certificate – Confirmation of estate trustees
    
    A court status certificate confirms that the estate trustee has the authority to act on behalf of the deceased and administer their estate.
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  - Confirmation that an estate trustee has been replaced by another person
    
    The court may order the removal an estate trustee and appoint a replacement who will continue administering the estate. The documents to file in an application for a court status certificate are set out in r 74.14.2(2) and (5) and include:
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  - Letter to court requesting confirmation of status of estate trustee - Replacement by court order
  - Affidavit
- Confirmation by resealing of appointment of estate trustee
  - Confirmation by resealing of appointment of estate trustee
    
    The documents to file in an application for a confirmation by resealing of appointment of estate trustee are set out in r 74.08(1) and include the following:
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  - Eligibility to apply
    
    Confirmation by resealing of appointment of estate trustee is only available for applicant's who are:
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  - Application for Certificate or Confirmation of Appointment
  - Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Ontario government
  - Letter to court enclosing application for confirmation by resealing of appointment of estate trustee
  - If required - Waive, dispense, or reduce bond requirement
    
    Spousal request to waive bond requirement
    
    An applicant spouse who was married to the deceased may request a waiver of the bond requirement by filing, along with the application for a certificate of appointment, an Affidavit, form 4D, that:
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    Affidavit
    
    Clause - Affidavit of spouse to request waiver of bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Under r 74.11(5) of the Rules of Civil Procedure, an applicant can request an order under s 37(2) of the Estates Act 1990 to dispense with the requirement to provide a bond, or to reduce the bond amount, on consent and without bringing a motion. This option is available only if:
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    Letter to beneficiary requesting consent to dispense with bond requirement
    
    Renunciation and Consent
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
    
    Motion to dispense with or reduce bond requirement
    
    Request by motion to dispense with or reduce bond requirement
    
    A request to dispense with the requirement to provide a bond, or to reduce the bond amount under s 37(2) of the Estates Act 1990, can be made by motion in accordance with the r 37 motions procedure: see r 74.11(4). The motion may be brought before, with, or after the application for ...
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    Notice of Motion
    
    Affidavit
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit of Service
- Certificate of appointment of foreign estate trustee’s nominee as estate trustee without a will
  - Certificate of appointment of foreign estate trustee's nominee as estate trustee without a will
    
    This application is made when a person has been appointed estate trustee without a will by a court in a jurisdiction outside Canada and the Commonwealth. A foreign estate trustee must nominate a resident of Ontario to act on their behalf. The nominee then files the application for the certificate ...
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  - Application for Certificate or Confirmation of Appointment
  - Nomination of Applicant by Foreign Estate Trustee
  - Affidavit
  - Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Estate administration tax
    
    Estate administration tax is payable when an application is made for a Certificate of Appointment of Estate Trustee: see r 74.13(1) of the Rules of Civil Procedure and s 2(1) of the Estate Administration Tax Act 1998. The tax is calculated based on the value of the deceased’s estate at ...
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  - Calculating the Estate Administration Tax – Government of Ontario
  - Clause - Translator's affidavit of official translation
  - Certificate of notarial copy
  - Letter to court enclosing application for certificate of appointment of foreign estate trustee’s nominee as estate trustee without a will
  - If required - Waive, dispense, or reduce bond requirement
    
    Spousal request to waive bond requirement
    
    An applicant spouse who was married to the deceased may request a waiver of the bond requirement by filing, along with the application for a certificate of appointment, an Affidavit, form 4D, that:
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    Affidavit
    
    Clause - Affidavit of spouse to request waiver of bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Under r 74.11(5) of the Rules of Civil Procedure, an applicant can request an order under s 37(2) of the Estates Act 1990 to dispense with the requirement to provide a bond, or to reduce the bond amount, on consent and without bringing a motion. This option is available only if:
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    Letter to beneficiary requesting consent to dispense with bond requirement
    
    Renunciation and Consent
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
    
    Motion to dispense with or reduce bond requirement
    
    Request by motion to dispense with or reduce bond requirement
    
    A request to dispense with the requirement to provide a bond, or to reduce the bond amount under s 37(2) of the Estates Act 1990, can be made by motion in accordance with the r 37 motions procedure: see r 74.11(4). The motion may be brought before, with, or after the application for ...
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    Notice of Motion
    
    Affidavit
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit of Service
- Certificate of appointment of estate trustee during litigation
  - Certificate of appointment of estate trustee during litigation
    
    When ongoing litigation affects the administration of an estate, the court may appoint an estate trustee during litigation to manage the estate. This appointed estate trustee can then apply for a Certificate of Appointment of Estate Trustee during Litigation. If the application is granted, the ...
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  - Application for Certificate or Confirmation of Appointment
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Letter to court enclosing application for certificate of appointment of estate trustee during litigation
- Certificate of appointment of succeeding estate trustee without a will
  - Certificate of appointment of succeeding estate trustee
    
    If the estate trustee dies before completing the administration of the deceased's estate, a succeeding estate trustee must be appointed to continue and complete the administration. This situation can arise under a variety of circumstances, including:
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  - Application for certificate of appointment of succeeding estate trustee without a will
    
    The documents to file in an application for a certificate of appointment of succeeding estate trustee without a will are set out in r 74.07 and include:
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  - Application for Certificate or Confirmation of Appointment
  - Certificate of Appointment of Estate Trustee
  - Backsheet
  - Renunciation and Consent
  - Bonds of indemnity
    
    A bond of indemnity, also referred to as an estate administration bond, is a form of security posted by an estate trustee to guarantee that they will administer the estate properly and fulfill their duties in accordance with applicable legislation and the terms of the will, if one exists. The ...
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  - Bond - Insurance or Guarantee Company
  - Bond - Personal Sureties
  - Letter to court enclosing application for certificate of appointment of succeeding estate trustee without a will
  - If required - Waive, dispense, or reduce bond requirement
    
    Spousal request to waive bond requirement
    
    An applicant spouse who was married to the deceased may request a waiver of the bond requirement by filing, along with the application for a certificate of appointment, an Affidavit, form 4D, that:
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    Affidavit
    
    Clause - Affidavit of spouse to request waiver of bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Request on consent to dispense with or reduce bond requirement
    
    Under r 74.11(5) of the Rules of Civil Procedure, an applicant can request an order under s 37(2) of the Estates Act 1990 to dispense with the requirement to provide a bond, or to reduce the bond amount, on consent and without bringing a motion. This option is available only if:
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    Letter to beneficiary requesting consent to dispense with bond requirement
    
    Renunciation and Consent
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit
    
    Motion to dispense with or reduce bond requirement
    
    Request by motion to dispense with or reduce bond requirement
    
    A request to dispense with the requirement to provide a bond, or to reduce the bond amount under s 37(2) of the Estates Act 1990, can be made by motion in accordance with the r 37 motions procedure: see r 74.11(4). The motion may be brought before, with, or after the application for ...
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    Notice of Motion
    
    Affidavit
    
    Order in an Estates Proceeding
    
    Backsheet
    
    Affidavit of Service
E. Signing, serving, and filing the application package
- Digital signatures
  
  A digital signature is an electronic signature in one of the following acceptable formats:
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- Remotely commissioned affidavits
  
  Affidavits commissioned remotely must comply with the requirements set out in O. Reg. 431/20: Administering Oath or Declaration Remotely. In accordance with s 1 of O. Reg. 431/20, the following conditions must be met:
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- Serving the application
  - Serving the application for a certificate of appointment
    
    Under r 74.04(2) and r 74.1.03(3) of the Rules of Civil Procedure, an applicant for a certificate of appointment, including a small estate certificate, must serve a copy of the application on each person entitled to a share in the distribution of the estate. This includes:
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  - Method of service
    
    Under r 74.04(7) and r 74.1.03(7), documents may be served by:
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  - Documents to be served
    
    The service must include:
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  - Service when the deceased died intestate
    
    If the net value of estate exceeds $350,000, the following individuals are entitled to a share of the estate and must be served notice of the application, in this order of priority:
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  - Service on minors and unborn or unascertained persons
    
    Under r 74.04(3) and r 74.1.03(4), if a person entitled to a share of the estate is a minor, under 18 years of age, notice must be served on their parent or guardian, and The Office of the Children's Lawyer. For unborn or unascertained beneficiaries, in accordance with r 74.04(4) and ...
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  - Service on mentally incapable persons
    
    If a beneficiary is mentally incapable, as defined in s 6 of the Substitute Decisions Act 1992, in accordance with r 74.04(5) and r 74.1.03(6) notice must be served on:
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  - Letter to beneficiary giving notice of application
  - Serving documents on the Crown in a civil case – Government of Ontario
  - Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee
  - Lawyer’s Certificate of Service of Application for a Certificate of Appointment of Estate Trustee
- Filing the application
  - Filing the application for a certificate of appointment
  - Where to apply
    
    An application for a certificate of appointment is made to the Superior Court of Justice. If the deceased resided in Ontario, the application is filed in the court office for the county or district where they had their fixed place of abode: s 7(1) of the Estates Act 1990. A fixed place of ...
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  - All court locations – Ontario courts
  - Letter to court enclosing application for small estate certificate
  - Letter to court enclosing application for amended small estate certificate
  - Letter to court enclosing application for certificate of appointment of estate trustee without a will
  - Letter to court requesting confirmation of status of estate trustee - Replacement by court order
  - Letter to court enclosing application for confirmation by resealing of appointment of estate trustee
  - Letter to court enclosing application for certificate of appointment of foreign estate trustee’s nominee as estate trustee without a will
  - Letter to court enclosing application for certificate of appointment of estate trustee during litigation
  - Letter to court enclosing application for certificate of appointment of succeeding estate trustee without a will
  - Documents that can be filed by email and those that must be filed in paper format
    
    Not all court documents and support material can be filed by email. Certain documents and material included with the application must be in paper format.
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  - Filed by email
    
    The following documents can be filed electronically as part of an email submission:
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  - Information Form Application for Estate Certificate Probate
  - Email Processes for Certificates of Appointment of Estate Trustee (Probate) – Ontario courts
  - Notification of submission and file number
    
    When an application is filed in person, or submitted by mail or courier, the court staff will assign a court file number to the application and issue a notice by mail to the applicant or the filing party confirming the file number. If the application package is incomplete, the court will still ...
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- Certificate issued
  - Issued certificate of appointment
    
    Once the estate registrar is satisfied that the applicant has complied with all requirements of r 74.14(1) of the Rules of Civil Procedure, a certificate of appointment is issued. The certificate is issued in either electronic or paper format.
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  - Letter to client advising certificate of appointment of estate trustee without a will issued
  - Letter to client advising small estate certificate issued
  - Letter to client advising appointment as estate trustee and outlining administration process
F. Dealing with estate assets
- Dealing with estate assets
  
  Once the certificate of appointment is issued, the estate trustee can proceed with 2 primary responsibilities:
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- Real estate located in Ontario
  - Real estate located in Ontario
    
    A deceased person's real estate in Ontario can either be:
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  - ServiceOntario Electronic Registration Procedures Guide - Teraview
  - Arrangement between beneficiaries regarding life tenant
    
    Deed of family arrangement - Life tenant and remainderman
- Bank accounts and financial assets
  - Bank accounts and financial assets
    
    The estate trustee must contact any banks or financial institutions holding the deceased's bank accounts or financial assets, such as term deposits, to arrange for ownership to be transferred to the estate bank account. Once the funds or assets are in the estate's name or under the estate trustee's ...
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  - Letter to bank enclosing authorization and requesting transfer of estate assets
  - Authorization and direction by estate trustee to bank
- Registered plans
  - Registered plans
    
    Registered plans include:
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  - Letter to registered plan holder requesting transfer of plan balance
  - Transfer document by estate trustee to registered plan holder
- Investments
  - Investments
    
    The process of transferring investments from the deceased's name to the estate or a beneficiary involves working with the transfer agent. This applies to assets such as stocks, mutual funds, bonds, or other equities. The transfer agent, which is typically a trust company, is usually identified on ...
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  - Letter to transfer agent requesting transfer of shares of capital stock
  - Declaration of transmission by estate trustee
  - Power of attorney to transfer securities
  - Letter of instructions to the transfer agent
- Vehicles
  - Vehicles
    
    The process to transfer ownership of a deceased person's vehicle depends on whether the vehicle is being transferred to a family member or a non-family member.
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  - Transfer to a family member
    
    If a vehicle is being transferred to a beneficiary who is a qualifying family member, the process is streamlined. The estate trustee and the transferee can attend a ServiceOntario centre together to complete the ownership transfer. The following documents are involved in the process:
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  - Sworn Statement for a Family Gift of a Used Motor Vehicle in the Province of Ontario – Government of Ontario
  - Spouse Declaration and/or Plate Transfer Declaration – Government of Ontario
  - Transfer to a non-family member
    
    If the transferee is not a qualifying family member, the following additional documents and steps are required:
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  - Used vehicle information package – Government of Ontario
- Insurance policies
  - Insurance policies
    
    Life insurance policies are either payable to the estate or to a designated beneficiary named in the policy. To claim a policy payable to the estate, the estate trustee must contact the insurer to initiate a claim. The insurer will typically require a certified copy of the certificate of ...
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  - Letter to insurance company to pay out policy to estate or beneficiary
- Business interests
  - Business interests
    
    The deceased's business interests may include assets held in a variety of business structures, such as:
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  - Letter to third party business entity regarding deceased's business interests
- Personal effects
  - Personal effects
    
    Personal effects include furniture, clothing, jewellery, and other belongings of the deceased. While these items are often of little financial value, they may hold significant sentimental value for family members. In some cases, however, personal effects may need a formal appraisal if they have a ...
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  - Acknowledgement of receipt of personal effects and release
  - Arrangement between beneficiaries concerning personal effects
    
    Deed of family arrangement
- Cash, uncashed cheques, and outstanding debts
  - Cash and uncashed cheques
    
    Any cash or uncashed cheques payable to the deceased must be deposited into the estate bank account. If a bank requires that a cheque made payable to the deceased be deposited first into the deceased's personal account, the estate trustee should:
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  - Security deposits
    
    If the deceased was a tenant, their landlord may hold a security deposit. The estate trustee must ensure that this deposit, including any accrued interest, is returned and deposited into the estate's bank account. The landlord may propose applying the deposit towards any outstanding rent. If so, ...
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  - Entitlements or other debts owed to the deceased
    
    The deceased may have been owed debts or entitlements at the time of death. If a debt is already due, the estate trustee can present a certificate of appointment to the debtor and collect payment on behalf of the estate. The estate trustee should also provide a written direction instructing the ...
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  - Mortgages
    
    The estate may also include a mortgage receivable, where the deceased was the lender or mortgagee, and the borrower or mortgagor, owes repayment. In this situation, the estate trustee must:
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  - Letter to debtor requesting payment of debt
  - Direction to debtor
  - Letter to debtor confirming receipt of payment of debt in full with release
- Canada Pension Plan and private pension benefits
  - Canada Pension Plan
    
    Canada Pension Plan death benefits
    
    The Canada Pension Plan (CPP) is a public pension plan that provides monthly benefits to contributors who have reached retirement age. Under the CPP, when a contributor dies, their estate trustee, surviving spouse or common-law partner, or next of kin can apply for death benefits. Death benefits ...
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    My Service Canada Account (MSCA) – Government of Canada
    
    Canada Pension Plan: Pensions benefits monthly amounts – Government of Canada
    
    Applying for the death benefit
    
    The estate trustee, surviving spouse, or next of kin can apply for the death benefit. Applications must be made within 60 days of the contributor's death. An application can be completed online or using a paper application. An online application is made through the My Service Canada Account ...
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    Application for CPP Death Benefit – Government of Canada
    
    Survivor's pension
    
    A survivor's pension is a monthly benefit paid to the deceased contributor's spouse or common-law partner. To be eligible, the applicant must be:
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    Application for CPP Survivor’s Pension and Surviving Child’s Benefits – Government of Canada
    
    Applying for the children's benefit
    
    Dependant children, or their parent or guardian, can apply for this benefit. The estate trustee normally assists in the application process. An application should be made right after the parent or guardian's death. A delay can result in the loss of benefits.
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    Canada Pension Plan Child’s Benefit Application and Declaration for a Student Over 18 years of Age in Attendance at School or University – Government of Canada
  - Private pension benefits
    
    Private pension benefits
    
    The estate trustee is responsible for handling any private pension benefits payable to the estate, and often helps ensure that payments are made directly to the named beneficiaries, if applicable. To initiate the process, the estate trustee contacts the pension plan provider to:
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    Letter to private pension plan to claim joint and survivor pension benefits
G. Estate information return and estate administration tax refunds and additional payments
- Estate information return
  - Estate information return
    
    An Estate Information Return must be submitted to the Ministry of Finance within 180 days of receiving a certificate of appointment or a small estate certificate: s 3(1) of O. Reg. 310/14 and s 4.1 of the Estates Administration Tax Act 1998. Filing the return is mandatory for all ...
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  - Estate Information Return
  - Filing the return
    
    The return can be filed:
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  - Letter to Minister of Finance to filing estate information return
  - Letter to Minister of Finance filing estate information return when estate value estimated
  - Online Services – Government of Ontario
  - Amended estate information return
    
    Under s 4(3) of O. Reg. 310/14, if the estate trustee discovers an error or omission in a previously filed estate information return, they must file an amended return within 60 days of becoming aware of the incorrect or incomplete information. This obligation remains in effect until the ...
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  - Warnings, audits, assessments, and appeals
    
    The estate trustee may face fines and, in serious cases, imprisonment, for failing to file the estate information return or for including false or misleading information. The Ministry of Finance has the authority to audit the return and may request supporting documentation to verify the declared ...
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  - Notice of Objection
  - Notice of Objection – Mail in Form – Government of Ontario
  - Letter to Minister of Finance enclosing notice of objection
- Paying additional estate administration tax
  - Paying additional estate administration tax
    
    New estate assets may be discovered after the certificate of appointment is issued, increasing the total value of the estate and the amount of estate administration tax payable. If additional assets are found after the certificate is issued, the estate trustee must pay the additional tax by filing ...
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  - Affidavit for Estate Administration Tax – Additional Payment/Refund – Ontario courts
  - Estate Information Return
  - Letter to Minister of Finance filing amended estate information return
  - Online Services – Government of Ontario
  - When an estimated estate value was initially provided
    
    If the estate trustee used an estimated estate value in the original application, additional tax may be payable once the actual value of the estate is determined. In that case, the estate trustee must file:
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  - Affidavit for Estate Administration Tax – Additional Payment/Refund – Ontario Court Services
  - Affidavit
  - Clause - Statement confirming actual value of the estate in fulfillment of an undertaking
  - Letter to Minister of Finance filing amended estate information return in fulfillment of undertaking to court
  - Subsequently discovered property
    
    Under s 32(2) of the Estates Act 1990, if an estate trustee discovers additional assets after a certificate of appointment has been issued, they must file a statement with the court showing the revised value of the estate. The estate trustee has 6 months from the date of discovery to file ...
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- Estate administration tax refunds
  - Estate administration tax refunds
    
    The estate trustee is responsible for claiming a partial refund if estate administration tax is paid in excess of the estate's actual tax liability. Overpayment can occur if estate assets are overvalued or their value was based on an estimate at the time of filing an application for a certificate ...
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  - Partial refunds before the certificate of appointment is issued
    
    Before the certificate of appointment is issued, the estate trustee can file a request for a partial refund with the court where the application was submitted, stating that an error was made in calculating the estate administration tax. The following must be submitted to the court office:
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  - Affidavit for Estate Administration Tax – Additional Payment/Refund – Ontario courts
  - Affidavit
  - Partial refunds after the certificate of appointment is issued
    
    Section 4.5.1 of the Estates Administration Tax Act 1998 outlines the process for obtaining a partial refund from the Ministry of Finance after a certificate of appointment has been issued. Requests must be submitted in writing to the Ministry of Finance, not the court.
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  - Letter to Minister of Finance requesting partial refund of estate administration tax
  - Clause - Request for partial refund of estate administration tax
  - Estate Information Return
  - Letter to Minister of Finance filing amended estate information return
  - Online Services – Ontario government
H. Payment to creditors
- Payment to creditors
  
  Before an estate trustee can distribute estate assets to beneficiaries, all debts and taxes owed by the estate must be paid. This section outlines the process for making payments to creditors, which is the collective term for the debt holders. The general rule is that creditors must be paid before ...
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- Estate debts and creditor claims worksheet
- Initial letter to creditor
- Recording payments to creditors
  
  Payments to creditors are typically made by cheque drawn from the estate bank account. Each payment should be accompanied by:
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- Letter to creditor enclosing payment and voucher confirming payment
- Voucher confirming payment of debt in full
- Insolvent estates
  
  An estate is considered insolvent when its debts exceed the total value of its assets. In such cases, the estate trustee pays the estate debts in the following order:
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- Bankrupt estates
  
  If an estate is bankrupt, payment to creditors must follow the priority rules set out in s 136(1) of the Bankruptcy and Insolvency Act 1985. The specific order of payment depends on the circumstances of the estate. As with insolvent estates, reasonable funeral expenses and estate ...
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- Advertising for creditors
  - Advertising for creditors
    
    The estate trustee is responsible for ensuring that all debts of the estate are paid. If the estate trustee distributes estate assets in a way that prejudices a creditor's right to payment, they may be held personally liable. This liability applies to both known creditors and those who were not ...
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  - Letter to estate trustee confirming notice will be published advertising for creditors
  - Letter to estate trustee confirming decision not to advertise for creditors
  - Acknowledgement of estate trustee of decision not to advertise for creditors
  - Where to publish the notice to creditors
    
    Geographic location of residence The notice should be published in the geographic area where the deceased last resided. If the deceased lived in multiple locations across the province, publication should occur in each of those areas.
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  - Recommended content of the notice to creditors
    
    The notice should include the following:
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  - Notice to creditors
- Reviewing and evaluating creditor claims
  - Reviewing and evaluating creditor claims
    
    All creditor claims received by the estate trustee must be carefully reviewed to determine their legitimacy. If there is any doubt as to whether a debt has already been paid by the deceased, or is valid, the estate trustee should request supporting documentation from the creditor, which may ...
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  - Letter to creditor requesting particulars and supporting documentation to prove claim is valid
  - Letter to creditor requesting sworn affidavit detailing particulars of debt
- Notice of contestation
  - Notice of contestation
    
    Under ss 44 and 45 of the Estates Act 1990, the estate trustee may formally contest both liquidated and unliquidated claims made against the estate by serving the creditor a Notice of Contestation, form 75.13: r 75.08(1). The notice of contestation is an effective tool for estate ...
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  - Notice of Contestation
  - Letter to creditor serving notice of contestation
  - Claim Against Estate
  - Affidavit
  - Affidavit of Service
I. Taxes owing and the Canada Revenue Agency
- Taxes owing and the Canada Revenue Agency
  
  The estate trustee is responsible for filing tax returns and paying any outstanding tax liabilities of the deceased. This may include income tax owed from previous years, as well as taxes for the year of death. Additional tax liabilities may also arise during the administration of the estate. In ...
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- Estate trustee's tax obligations
  
  Under the Income Tax Act 1985, an estate trustee is referred to as a legal representative. As a legal representative, the estate trustee is responsible for administering the deceased's estate, which includes filing the necessary tax returns on behalf of the deceased: s 150(3).
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- Tax returns to file
  
  The estate trustee is responsible for filing the following tax returns with the Canada Revenue Agency on behalf of the deceased:
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- Prepare tax returns for someone who died: What returns you need to file – Government of Canada
- Capital gains tax at death
  
  Under Canadian tax law, death is considered a taxable event and can result in significant tax liability for the deceased's estate. The deemed disposition rules under the Income Tax Act 1985 treat the deceased as having disposed of all capital property immediately before death at its fair market ...
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- Principal residence exemption from capital gains
  
  Under the Income Tax Act 1985, a taxpayer can designate a property as their principal residence. When a property qualifies for this designation, it is eligible for the principal residence exemption, which serves to reduce or eliminate any capital gains tax arising from its sale or deemed ...
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- Rollovers
  
  The Income Tax Act 1985 provides a way to defer the immediate tax liability triggered by the deemed disposition of property on death, called a rollover. A rollover allows a property to be transferred from one person to another without triggering capital gains tax at the time of the transfer. ...
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- Elections to avoid rollover
  
  Although the Income Tax Act 1985 provides rollovers to defer capital gains tax on certain transfers at death, the estate can elect not to apply the rollover in certain cases. Doing so can offer tax advantages. Electing to forego the rollover means the capital gain on the deemed disposition is ...
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- Lifetime capital gains exemption for qualified small business corporation shares
  
  Under ss 110.6(1) and (2.1) of the Income Tax Act 1985, individuals resident in Canada are entitled to a lifetime capital gains exemption on capital gains realized from the disposition of qualified small business corporation shares, up to the specified exemption limit. As of June 25, ...
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- Registered plans and taxes owing
  
  Registered plans are subject to special tax treatment under the Income Tax Act 1985. The tax treatment on the death of the plan holder depends on:
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- Clearance certificate before distribution
  
  A clearance certificate is a formal document issued by the Canada Revenue Agency that confirms a taxpayer, either an individual or an estate, has paid all amounts owed, or that may reasonably be expected to become owed, under the Income Tax Act 1985. Under s 159(2) , an estate trustee must ...
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- Apply for a clearance certificate
  - How to apply for a clearance certificate
    
    The steps to apply for a clearance certificate are as follows:
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  - Form TX19 Asking for a Clearance Certificate – Government of Canada
  - List of deceased's assets - Request for clearance certificate
  - List of deceased's assets transferred to a trust - Request for clearance certificate
  - List of deceased's assets distributed to date - Request for clearance certificate
  - Statement of proposed distribution of holdback, residual amount, or property - Request for clearance certificate
  - Beneficiary information - Request for clearance certificate
  - AUT-01 Authorize a Representative for Offline Access – Government of Canada
  - Letter to CRA Audit - Tax Clearance Certificates submitting package for clearance certificate request
  - Sign in to your CRA account
J. Accounting, executor compensation, and distribution to beneficiaries
- Accounting and distribution to beneficiaries
  
  Once all debts, liabilities, and taxes of the deceased and their estate have been paid, the estate trustee can distribute the estate to the beneficiaries. Before distribution, the estate trustee prepares an informal accounting for the beneficiaries, accompanied by a release. The informal accounting ...
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- Distribution and the intestacy laws
  
  Distribution of an intestate estate depends on the existence of a spouse or issue. The basic framework under the Succession Law Reform Act 1990 is:
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- Accounts
  - Accounts
    
    The estate trustee owes fiduciary duties to all beneficiaries and creditors of an estate. As a fiduciary, the estate trustee is required to administer the estate properly and fairly, and transparently. One of the most significant fiduciary duties is the duty to keep proper accounts: see Pinard et ...
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  - Informal accounting
    
    Informal accounting
    
    An informal accounting is typically presented as a spreadsheet accompanied by a summary letter addressed to each beneficiary. It outlines key financial information about the estate's administration, including:
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    Letter to beneficiary accompanying informal accounting
    
    Estate accounting - Informal accounting spreadsheet
    
    Proposed distribution plan - Informal accounting
    
    Release - Informal accounting
    
    Letter to the office of the public guardian and trustee with informal accounting and proposed distribution plan
    
    Summary of family tree
  - Formal accounting
    
    Formal accounting
    
    Formal accounting is a detailed, itemized breakdown of every asset, liability, receipt, investment, expense, and disbursement incurred during the administration of the estate over a defined period. Formal accounting is required in 2 situations:
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    The form of accounts under rule 74.17
    
    Rule 74.17 sets out the required format for preparing estate accounts. The estate trustee must maintain accurate and complete records, and these must be included in the formal accounts provided to beneficiaries and the court when seeking to pass accounts. The required components of the estate ...
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    Letter to beneficiary providing copy of formal accounting
    
    Passing of accounts and formal accounting
    
    Passing accounts is a formal court audit of the estate trustee's financial administration of the deceased's estate. In this process, the court acts as an auditor, ensuring that all estate assets have been properly accounted for, disbursements have been accurately made, appropriate vouchers and ...
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- Executor compensation
  - Executor compensation
    
    Executor compensation refers to the remuneration an estate trustee receives for administering a deceased's estate. Under s 61(1) of the Trustee Act 1990, an estate trustee is entitled to fair and reasonable compensation for the attention required in administering the deceased's estate.
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  - Letter to client advising they are entitled to executor compensation
  - Care and management fees
    
    If the administration of an estate continues for more than 1 year, the estate trustee can also claim a care and management fee. This fee is 2/5 of 1% per annum of the gross value under administration. Courts do not allow annual care and management fees unless estate trustees hold assets for ...
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  - Tax payable on compensation
    
    Executor compensation is considered taxable income. As such, the estate trustee must report any compensation received for administering the estate as income on their personal income tax return.
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- Distribution to beneficiaries
  - Distribution to beneficiaries
    
    Distribution of the estate to beneficiaries typically occurs near the end of the estate administration process. There are 2 key considerations that may require the estate trustee, and the lawyer assisting with the administration, to delay distribution.
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  - Distribution of an intestate estate
    
    Distribution of an intestate estate depends on the existence of a spouse and children, also known as issue. The basic framework under the Succession Law Reform Act 1990 is:
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  - Delaying distribution
    
    Intestacy If the deceased died intestate, distribution must be postponed for 1 year in accordance with s 26 of the Estate Administration Act 1990, unless an exception applies.
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  - Letter to beneficiary with details of entitlement
  - Letter to beneficiary with distribution of residue
  - Acknowledgement of receipt of personal effects and release
  - Acknowledgement and release - Interim distribution
  - Acknowledgement and release - Final distribution
  - Release and indemnity
  - Statement of assets, liabilities and distribution
  - Interim distribution
    
    Interim distribution
    
    If the estate trustee is absolutely certain that the estate is solvent and has sufficient estate assets to satisfy all debts, liabilities, and taxes, they may make an interim or partial distribution to beneficiaries. However, the trustee should proceed with caution. They are personally responsible ...
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    Letter to beneficiary with interim distribution
    
    Acknowledgement and release - Interim distribution
    
    Letter to beneficiary on interim distribution enclosing statement for approval
    
    Statement of assets, liabilities and distribution
  - Final distribution
    
    Final distribution
    
    After all estate debts, liabilities, and taxes have been paid in full, and while waiting for a clearance certificate from the Canada Revenue Agency, the estate trustee can proceed with the final distribution of the estate. At this stage, the trustee can transfer or release the remaining estate ...
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    Letter to beneficiary with final distribution
    
    Acknowledgement and release - Final distribution
  - Distribution of holdback after receipt of clearance certificate
    
    Distribution of holdback after receipt of the clearance certificate
    
    Once the estate trustee receives the clearance certificate from the Canada Revenue Agency, the estate trustee should promptly distribute the remaining estate balance to the beneficiaries. As long as the estate trustee retains control of any undistributed estate assets, they remain responsible in ...
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    Letter to client with final accounts and distribution - After the notice to creditors
    
    Statement of assets, liabilities and distribution
    
    Letter to beneficiary with distribution of holdback
    
    Release and indemnity
  - Library of deeds of release and indemnity
    
    Deed of release and indemnity - Intestacy - No certificate of appointment
    
    Deed of release and indemnity - Intestacy - Distribution without notice of claims
    
    Deed of release and indemnity - Intestacy - Distribution with notice of claims
    
    Deed of release and indemnity - Intestacy - Estate trustee's compensation
K. Estate litigation matters
- Estate litigation matters
  
  In most instances, the Rules of Civil Procedure state that a person who appears to have a financial interest in an estate has standing to bring an application or motion. At a minimum, this includes both beneficiaries and contingent beneficiaries, as they clearly have a financial interest in the ...
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- Practice directions
  
  Both provincial and regional practice directions apply to estate matters in Ontario. The Ontario Superior Court of Justice's Consolidated Civil Procedure Practice Direction applies to all civil court proceedings, including estate matters, unless stated otherwise.
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- Delays
  
  Delays in the administration of the estate may occur when the person named as the estate trustee in the will refuses or fails to act, potentially jeopardizing estate assets and prejudicing beneficiaries' interests. Under r 74.15(1) of the Rules of Civil Procedure, a person with a financial ...
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- Letter serving documents in estate litigation matters - Generic
- Passing of accounts
  - Passing of accounts
    
    The passing of accounts is a court process in which the estate trustee submits formal accounts for review and approval. These accounts are provided to beneficiaries, their lawyers, and, in some cases, creditors. The process ensures transparency and allows for judicial oversight of estate ...
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  - Notice of Application to Pass Accounts
  - Affidavit Verifying Estate Accounts
  - Judgment on Unopposed Passing of Accounts
  - Judgment on Contested Passing of Accounts
  - Schedule to draft judgment listing estate assets still to be distributed
  - Affidavit of Service
  - Lawyer's Certificate of Service
  - Notice of Objection to Accounts
  - If required - Responding to the notice of application
    
    Responding to the notice of application
    
    A person who has been served with a notice of application to pass accounts may respond by serving and filing one of the following:
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    Responding by notice of objection to accounts
    
    A person, or their representative, who has received notice of the application may respond by serving and filing a Notice of Objection to Accounts, form 74.45, in accordance with r 74.18(7). The Notice of Objection to Accounts, form 74.45, must be:
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    Notice of Objection to Accounts
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Reply to Notice of Objection to Accounts
    
    Notice of Withdrawal of Objection
    
    Request for Further Notice in Passing of Accounts
    
    Notice of No Objection to Accounts
    
    Notice of Non-Participation in Passing of Accounts
    
    Request for Costs (Person other than Children’s Lawyer or Public Guardian and Trustee)
    
    Request for Costs (Children’s Lawyer or Public Guardian and Trustee)
  - If required - Application record when no hearing is required
    
    Application record when no hearing is required
    
    When no hearing is required, the applicant must file an application record in accordance with r 74.18(9). The application record must include:
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    Application record - No hearing is required
    
    Affidavit in Support of Unopposed Judgment on Passing of Accounts
    
    Request for Increased Costs (Estate Trustee)
    
    Request for Increased Costs (Person other than Estate Trustee)
    
    Lawyer's certificate confirming application record is complete
    
    Judgment on Unopposed Passing of Accounts
  - If required - Application record when hearing is required
    
    Application record when a hearing is required to pass accounts
    
    Under r 74.18(11.7), if the application to pass accounts proceeds to a hearing, the applicant must file an application record with the court at least 5 days before the hearing date. The application record must include the following documents:
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    Application record - Hearing required
    
    Judgment on Contested Passing of Accounts
- Notice of objection
  - Notice of objection
    
    At any time before the court issues a certificate or appointment, any person who has a financial interest in the estate may file a Notice of Objection, form 75.1, to object to the issuance of a certificate of appointment with or without a will: r 75.03(1). The objector must set out the ...
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  - Notice of Objection
  - Notice to Objector
  - Affidavit of Service
  - Lawyer's Certificate of Service
  - Notice of Appearance - Form 75.4
  - Letter to objector's lawyer requesting details of reasons for objection
  - Letter to client regarding a notice of objection
  - Letter to objector's lawyer with response to objections
  - Letter to objector's lawyer serving notice to objector
- Application or motion for directions
  - Application or motion for directions
    
    Rule 75.06 allows any person who appears to have a financial interest in an estate to seek directions from the court. In the context of an estates dispute, this rule gives the court broad authority to issue procedural directions to the parties. If there is no existing proceeding, an interested ...
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  - Filing of application or motion for directions
    
    An application or motion for directions can be filed in person at the court office or online using the Civil Submissions Online portal. Parties are encouraged to file documents online rather than in person. The filing fees can be paid through the portal directly, without the need to attend the ...
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  - Notice of application for directions
    
    Notice of application for directions
    
    An application for directions is commenced using Notice of Application for Directions, form 75.5. The notice must be served on all persons who appear to have a financial interest in the estate at least 10 days before the hearing date: r 75.06(2). An Affidavit, form 4D, and all ...
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    Notice of Application for Directions
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Application record - Rule 38.09(2)
    
    Order Giving Directions
    
    Letter to court with memo to court staff regarding a submission - Application for directions
    
    Confirmation of Application
    
    If required - Responding to the application
    
    Responding to the application
    
    A party who is served with a notice of application may file a Notice of Appearance, form 38A, to indicate their intention to respond to the application: r 38.07(1). The responding party can also serve on the applicant, and file with the court, any supporting affidavits, using a ...
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    Notice of Appearance
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Respondent's application record - Rule 38.09(3.1)
  - Notice of motion for directions
    
    Notice of motion for directions
    
    A motion for directions is made using a Notice of Motion for Directions, form 75.6. The notice must be served on all persons who appear to have a financial interest in the estate at least 10 days before the hearing date: r 75.06(2). An Affidavit, form 4D, and all other ...
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    Notice of Motion for Directions
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Motion record - Rule 37.10(2)
    
    Order Giving Directions
    
    Letter to court with memo to court staff regarding a submission - Motion for directions
    
    Confirmation of Motion
    
    If required - Responding to the motion
    
    Responding to the motion
    
    The responding party can serve on the moving party and file with the court any supporting affidavits, using an Affidavit, form 4D, and evidence they intend to rely on at the motion hearing. These documents must be served and filed, along with proof of service, using form 16B, an Affidavit ...
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    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Responding party's motion record - Rule 37.10(3)
- Application to revoke a certificate of appointment
  - Application to revoke a certificate of appointment
    
    Any person with a financial interest in the estate can apply to the court to revoke the certificate of appointment of an estate trustee under r 75.04. This applies to certificates issued using:
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  - Notice of Application for Directions
  - Order Giving Directions
  - Affidavit
  - Affidavit of Service
  - Lawyer's Certificate of Service
  - Application record - Rule 38.09(2)
  - Letter to court with memo to court staff regarding a submission - Application to revoke a certificate of appointment
  - Confirmation of Application
- Motion for orders for assistance
  - Motion for orders for assistance
    
    Although not explicitly a contentious proceeding, orders for assistance under r 74.15 allow any person who appears to have a financial interest in an estate to bring a motion for a court order to resolve issues arising before, during, or after the issuance of a certificate of appointment. This ...
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  - Notice of Motion
  - Order in an Estates Proceeding
  - Backsheet
  - Affidavit
  - Letter to court with memo to court staff regarding a submission - Motion for orders for assistance
  - Confirmation of Motion
  - If required - Service of motion for orders for assistance
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
- Statutory based estate litigation
  - Statutory based estate litigation
    
    Estate litigation may arise as a consequence of a spouse or dependant's claim against the estate for an equalization payment or a support order. In this regard, estate litigation can include:
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  - Equalization claims under the Family Law Act 1990
    
    Equalization claims under the Family Law Act 1990
    
    Under the Family Law Act 1990, a surviving married spouse can make a property division claim against the deceased spouse's estate based on the equalization of net family property. Section 5(2) provides:
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    Election by surviving spouse
    
    Under s 6(1), a surviving spouse can elect to receive either:
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    Election of Surviving Spouse
    
    Letter to court estate registrar filing election of surviving spouse
  - Dependant's claims under the Succession Law Reform Act 1990
    
    Dependant's claims under the Succession Law Reform Act 1990
    
    Part V of the Succession Law Reform Act 1990 permits the dependants of a deceased person to claim support from the deceased's estate. This type of claim is known as dependant's relief. An order for support in favour of the dependant takes precedence over the terms of the deceased's will and, ...
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    Making the application for dependant's relief
    
    A dependant's relief claim is commenced by way of an application under r 38 of the Rules of Civil Procedure and is filed in the Superior Court of Justice. To start the claim, the applicant must file the following documents:
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    Notice of Application
    
    Information for Court Use
    
    Affidavit
    
    Financial Statement (Support Claims)
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Application record - Rule 38.09(2)
    
    Factum
    
    Confirmation of Application
    
    If required - Responding to application
    
    Notice of Appearance
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Respondent's application record - Rule 38.09(3.1)
    
    Factum
- Mandatory mediation in estate litigation disputes
  - Mandatory mediation in estate litigation disputes
    
    Rule 75.1 of the Rules of Civil Procedure mandates mediation in certain estate matters commenced in the following locations:
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  - Request for Assignment of Mediator
  - Notice by Mediator
  - Statement of Issues - Form 75.1C
  - Certificate of Non-compliance
  - Motion for directions regarding mediation
    
    Motion for directions regarding mediation
    
    Under r 75.1.05, the applicant must bring a motion for directions within 30 days after the last day to serve a notice of appearance. The motion is made under the same process used for motions under r 75.06. The court may give directions on:
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    Notice of Motion for Directions
    
    Affidavit
    
    Affidavit of Service
    
    Lawyer's Certificate of Service
    
    Motion record - Rule 37.10(2)
    
    Order Giving Directions
    
    Confirmation of Motion
L. Finalizing the matter
- Finalizing the matter
  
  Following the distribution of the estate, a final letter to the estate trustee reporting on the matter and enclosing their documents should be sent to finalize the matter. If the firm is not acting on the administration, after obtaining the certificate of appointment of estate trustee, the ...
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- Letter to client finalizing the matter - Concise - Appointment of an estate trustee with a will
- Letter to client finalizing the matter - Extensive - Appointment of an estate trustee with a will
- Invoice recital - Appointment of estate trustee without a will
- Closing the file
- File closing checklist
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Estate Administration

This publication guides practitioners acting for executors and administrators in estate law matters in Ontario.

Overview

Precedents in this publication include:

2 Matter Plans Included

Our Authors