How to Prepare an Application for a Certificate of Appointment of Estate Trustee With a Will

Updated May 20, 2016

This How-To Brief outlines the steps to take when preparing an application for a certificate of appointment of estate trustee with a will.

1Gather what you will need for the application

  • Original will
  • Original codicil(s), if any
  • Documentary proof of death
  • List of all of the deceased's assets with respective values
  • The following forms under the Rules of Civil Procedure:
    • Form 74.08, Affidavit of Execution of Will
    • Form 74.08, Affidavit(s) of Execution of Codicil(s), if one or more codicils exist
    • Form 74.04, Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant) (see also: Forms 74.04.1 and 74.05.1)
    • Form 74.07: Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will
    • Form 74.06: Affidavit of Service of Notice
    • Form 74.13: Certificate of Appointment of Estate Trustee with a Will
     
  • (See the link to the Rules of Civil Procedure Forms and a sample Form 74.04, Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant), in the Resources section of this How-To Brief.)
  • The following legislation:
    • Estate Administration Tax Act, 1998
    • Estates Act
    • Rules of Civil Procedure
     

2Determine if a certificate of appointment of estate trustee is necessary

  • It is typically necessary to apply for the certificate of appointment where
    • the estate is large and the assets are not (i) readily transferable, or (ii) transferable outside probate
    • there is real property, or
    • a financial institution requires the certificate
     
  • If a certificate is not required, most institutions will request that the beneficiary complete an indemnification prior to transferring the property.

3Prepare the necessary documents to complete the application

  • Complete the following documents:
    • Form 74.04, Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant)
    • Form 74.07, Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will
    • Form 74.13, Certificate of Appointment of Estate Trustee with a Will
     
  • The applicant is the prospective estate trustee. He or she must state his or her name, address and occupation in the application. The application also includes information regarding the deceased, including the name, last address, occupation, date of birth, date of death and date of the last will and/or any codicils to that will. The application should state the value of all personal property worldwide and real property in Ontario (net of encumbrances); that the deceased was of full legal age or, if not of full legal age, the deceased met the requirements permitting a valid will to be created; and whether the deceased was married after the will was executed. The original will should be attached to the application as an exhibit, and the estate trustee must swear, by affidavit, that the contents of the application are true.  Documentary proof of death must also be filed as part of the application.  (Make notarial copies of all original documents prior to submitting the application.)
  • A renunciation (Form 74.11) is required from any named estate trustee who chooses not to apply, despite being named in the will.
  • If the applicant is not named as the estate trustee in the will, the beneficiaries who together have a majority interest in the value of the estate at the date of death must sign a consent to the appointment of the applicant.

4Serve the appropriate parties with the appropriate documents

  • Notice of the application and a copy of the will and any codicils must be served on all persons entitled to share in the distribution of the estate, including charities and contingent beneficiaries, by regular letter mail to each person's last known address. Review rr. 74.04(2) and 74.04(7). An affidavit of service of the notice must be filed with the application in court.
  • Strictly speaking, it is not necessary to serve a copy of the entire will on beneficiaries who are only receiving cash bequests or gifts of specified items. Only the relevant portion of the will that defines the beneficiary's respective bequest need be served with the application. According to Form 74.6, it is not necessary to serve a copy of the entire will on beneficiaries who are only receiving cash bequests or gifts of specified items.  Only relevant portion of the will that defines the beneficiarys respective bequest need be served with the application.  However, in some circumstances, it may be prudent to provide the entire copy of the will.

Serving minors

  • Notice to minors shall be served on a parent or guardian and must be served on the Children's Lawyer. See rule 74.04(4). Notice to a minor does not need to be served on the Office of the Public Guardian and Trustee.

Serving mentally incompetent beneficiaries

  • Notice to a mentally incompetent beneficiary is served on the appropriate guardian, attorney or Public Guardian and Trustee. See r. 74.04(6).

Serving unborn or unascertained persons

  • If there are unborn or unascertained persons, notice is to be served on the Children's Lawyer. See r. 74.04(5).

5Calculate the estate administration tax (formerly known as probate fees)

  • Estate administration tax is paid to the Minister of Finance. The fees are based on the value of the estate and are calculated in accordance with s. 2(6) of the Estate Administration Tax Act, 1998. The fees are calculated based on the value of the deceased's assets in his or her name alone and does not include assets that pass outside of the estate or outside of probate. Note: amendments to the Estate Administration Tax Act 1998, received Royal Assent on May 12, 2011. There is no set date yet, as to when these amendments will come into force. Before calculating estate administration tax, applicants should ensure they are relying on the most up-to-date legislation.

6Determine if an administration bond is necessary

  • An estate trustee is personally liable for failing to administer an estate properly.
  • Review r. 74.11(1) regarding the particulars associated with administration bonds.
  • In most cases, where the applicant has been appointed under the will, there is no need to post a bond during the administration of the estate. However, if the applicant is a non-resident or has not been named in the will, the estate trustee will need to post a bond, unless all beneficiaries waive the requirement and an affidavit that all debts have been paid and a draft order waiving the bond are filed.
  • Form 74.32 is the appropriate form of bond from an insurance company, and Form 74.33 is the appropriate form of bond for one or more personal sureties.
  • If a government agency or a trust company is appointed as the estate trustee, a bond is not required.

7File the necessary documents with the Estate Registrar of the Ontario Superior Court of Justice

  • The following documents must be filed with the court in the county where the deceased had his or her permanent residence:
    • The original will
    • The original codicil(s), if any
    • Proof of death
    • Form 74.08, Affidavit of Execution of Will
    • Form 74.08, Affidavit(s) of Execution of Codicil(s), if one or more codicils exists
    • Form 74.04, Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant)
    • Form 74.07, Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will
    • Form 74.06, Affidavit of Service of Notice
    • Security, in accordance with the Estates Act
    • Probate fees, in accordance with the Estates Act
    • Form 74.13, Certificate of Appointment of Estate Trustee with a Will
     
  • If the deceased lives outside of Ontario but owns property in Ontario, the application should be filed in the jurisdiction where the property is located. If property is owned in multiple jurisdictions, the application can be made in any of those jurisdictions.
  • If an affidavit of execution of the will or codicil cannot be obtained, an affidavit attesting to the circumstances of the execution of the will and the fact that the witnesses are dead or cannot be located and confirming the deceased's signature must be filed with the application.
  • If the original will is a holograph will, an affidavit (Form 74.09) attesting to the handwriting and the signature of the deceased must also be filed with the application.
  • If the will has been altered or marked in any way, a witness to the execution of the will must swear an affidavit of condition (Form 74.10) that confirms that the will is in the same condition as it was when it was originally signed. If there are unwitnessed changes, they must be noted in the affidavit.
  • If a witness or a spouse of a witness is a beneficiary, the witness must file proof (Form 74.40) that there was no undue influence exercised against the deceased.
  • When the application for the certificate of appointment is complete and the materials required to accompany the application are complete, the registrar may issue the certificate. If the application is not complete or contains information on which the registrar has a doubt, the application shall be referred to a judge for a determination.

Glossary

  • Beneficiary/ies:
    1. Person(s) entitled to benefit under the terms of a trust or will.
    2. Person(s) or association(s) named as the recipient(s) of the proceeds of a life insurance policy or a plan or fund (e.g., RRSP, RIF, LIF, pension or annuity.). In this context, the estate of a deceased may also be a beneficiary.
     
  • Certificate of appointment of estate trustee: Pursuant to rr. 74–75 of the Rules of Civil Procedure, this means letters probate, letters of administration or letters of administration with will annexed.
  • Codicil: A written supplement or addition to a will that may alter or revoke provisions in the existing will. Executed by the testator, with the same formalities of a will.
  • Estate trustee: Pursuant to rr. 74–75 of the Rules of Civil Procedure, this term means an executor, administrator or administrator with will annexed. "Estate trustee with a will" is an executor with will annexed. "Estate trustee without a will" means an administrator.
  • Holograph will: A will written entirely by the testator with the testator's own hand, signed by the testator without the necessity of witnesses.
  • Probate (or letters probate): Formally the term for the procedure by which a will is accepted as valid. Letters probate of a will certify that the will was "proved" and the administration of the estate given to the executor by the Ontario Superior Court of Justice. This is now referred to as a "certificate of appointment of estate trustee."
  • Proof of death: As of January 2016, proof of death must be filed as part of an Application for a Certificate of Appointment of Estate Trustee With or Without a Will pursuant to the Rules of Civil Procedure.  At r. 74.01, "proof of death" is defined as documentary evidence of a person's death, such as a death certificate issued by the Registrar General or a funeral director or, alternatively, an Order made under the Declarations of Death Act, 2002, stating that the person has been declared dead.  
  • Will: A testamentary instrument that must be made in writing. The Succession Law Reform Act sets out the requirements for making different types of wills, including holograph wills, military wills, wills by minors and international wills.

Resources

Statutes and Rules