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Ministry of the Attorney General

Avoid Common Errors in Applying for a Certificate of Appointment of Estate Trustee

Ministry of the Attorney General

Below are guidelines to address common errors in applications for a certificate of appointment of estate trustee with, or without, a will. You may wish to keep these in mind when completing your application.

All Applications

  1. Section 7 of the Estates Act provides that the application for a certificate of appointment of estate trustee with or without a will must be filed with the Superior Court of Justice in the county or district in which the deceased resided at the time of death. If the deceased did not reside in Ontario at the time of death, the application must be filed at the Superior Court of Justice in the county or district where the deceased had property at the time of death.

    Read the Act on the Ontario government’s E-laws website at: http://www.ontario.ca/laws/statute/90e21.

  2. Rule 74 of the Rules of Civil Procedure sets out the estates forms that must be used. Rule 4 of the Rules of Civil Procedure sets out the format that must be used. View the Rules of Civil Procedure at: http://www.ontario.ca/laws/regulation/900194. The forms are available on the Ontario Court Forms website at: http://ontariocourtforms.on.ca/. There is a link on that website to properly formatted estates forms and are ready for you to fill in your information.
  3. In the space near the top of the application form where it says: “This application is filed by…” fill in your name if you are representing yourself. If your lawyer is representing you, your lawyer’s name is filled in.
  4. Make sure that you use the same names for people in all forms and make sure they match the names set out in any will. This includes the deceased, estate trustee(s) and beneficiaries and their respective “also known as names” (other names by which they are known). For example, if the will names “Megan Hart”, but her married name is “Megan Frost”, all documents would indicate “Megan Frost referred to in the will as Megan Hart”.
  5. All of the following information must be completed on the court forms, and must be consistent with the different forms filed:
    1. date of the will;
    2. date of death;
    3. occupation of the deceased (prior to retirement);
    4. occupation of the estate trustee(s), and addresses.
  6. The correct amount of estate administration tax must be paid. . The formula for calculating the amount of tax is set out in the Estate Administration Tax Act, 1998. The formula, calculated on the total value of the estate, is:
    1. $5 for each $1,000, or part thereof*, of the first $50,000; and
    2. $15 for each $1,000, or part thereof*, of the value exceeding $50,000.
    3. *Round up to the nearest thousand and then calculate

    A chart setting out estate administration tax payable is available at: http://www.attorneygeneral.jus.gov.on.ca/english/estates/estates-FAQ.php#s5. Read the Act on the Ontario government’s E-laws website at: http://www.ontario.ca/laws/statute/98e34.

  7. All changes to the application and any affidavit must be initialled by the deponent and the same commissioner for taking affidavits.
  8. In some situations a bond must be filed per theEstates Act section 35, or you may need to get an order that dispenses with the bond requirement. See the Estates Act on the E-laws website at: http://www.ontario.ca/laws/statute/90e21#BK33. Also see Rule 74.11 of the Rules of Civil Procedure at: http://www.ontario.ca/laws/regulation/900194.
    1. In order to dispense with a bond, or reduce the amount of the bond, you must file an affidavit stating that the deceased’s debts have been paid, or list all debts outstanding, and provide information about whether the deceased owned any businesses.
    2. In applications with a will, where you are seeking an order dispensing with the requirement to file a bond, a completed Form 74.12 Consent to Applicant’s Appointment as Estate Trustee With a Will must be filled out by each beneficiary, sent to you, and filed with the court.
    3. In applications without a will, where you are seeking an order dispensing with the requirement to file a bond, a completed Form 74.19 Consent to Applicant’s Appointment as Estate Trustee Without a Will must be received from all persons entitled to share in the estate and filed with the court.
    4. The draft order dispensing with a bond must contain both a header and backsheet. See the format of a header and backsheet on the Ontario Court Forms website at www.ontariocourtforms.on.ca.
  9. When you complete the affidavit at the end of either of the following forms, you should put your surname first, and your given name last (e.g. Doe, John):
    1. Form 74.4 Application for a Certificate of Appointment of Estate Trustee With a Will (Individual Applicant), or
    2. Form 74.14 Application for Certificate of Appointment of Estate Trustee Without a Will (Individual Applicant),

Issues specific to Applications for a Certificate of Appointment of Estate Trustee With a Will

  1. An Affidavit of Execution of Will or Codicil (Form 74.8) signed by one of the witnesses who observed (witnessed) the testator sign the will must be filed together with the original will marked as exhibit "A" to the affidavit. If you do not have an affidavit of execution and the witnesses cannot be found or both have died, an affidavit attesting to the signature of the testator must be filed. This affidavit should be made by a person (preferably not a beneficiary under the will) who is familiar with the signature of the testator, such as an employer or bank official who has a signature on file for comparison.
  2. On Form 74.4 Application for a Certificate of Appointment of Estate Trustee With a Will (Individual Applicant), only answer the question regarding an election under section 5 of the Family Law Actif you are the spouse of the deceased.
  3. Where the will states that a person other than the applicant has the right to apply for the certificate of appointment of estate trustee (or succeeding estate trustee), that person must renounce (give up) his or her right by completing Form 74.11 Renunciation of Right to a Certificate of Appointment of Estate Trustee (or Succeeding Estate Trustee) With a Will. This must be indicated on the application (Form 74.4) and onForm 74.13 Certificate of Appointment of Estate Trustee With a Will.
  4. If the applicant is not named as estate trustee in the will, consent to the applicant’s appointment (Form 74.12 Consent to Applicant’s Appointment as Estate Trustee With a Will) must be given from beneficiaries who, together, have a majority share in the value of the assets of the estate.
  5. If one or more estate trustees named in the will or codicil is not an applicant by reason of death or renunciation, indicate this information on the application (Form 74.4) and on Form 74.13 Certificate of Appointment of Estate Trustee With a Will.
  6. If a will and/or codicil (a supplement or appendix to a will) refers to a memorandum, the memorandum must be filed with the court. If no memorandum can be found, an affidavit must be filed indicating this,as well as the efforts made to find it.
  7. All beneficiaries named in the will must be served with Form 74.7 Notice of an Application for a Certificate of Appointment of Estate Trustee With a Will, or an explanation must be given (in Form 74.6 Affidavit of Service of Notice) as to why a beneficiary has not been served (e.g. address unknown, beneficiary has died, gift given prior to the deceased’s death or gift no longer exists.)
  8. Form 74.7Notice of an Application for a Certificate of Appointment of Estate Trustee With a Willmust be marked as "Exhibit 'A'" to Form 74.6 Affidavit of Service of Notice. The exhibit must be stamped and signed by the same commissioner for taking affidavits.
  9. The original will must be marked as "Exhibit 'A'" to the affidavit in Form 74.4 Application for a Certificate of Appointment of Estate Trustee With a Will (Individual Applicant), and the exhibit must be stamped and signed by the same commissioner for taking affidavits. The exhibit stamp should appear on the back of the signing page of the original will.
  10. On Form 74.8 Affidavit of Execution of Will or Codicil, the address of the second witness must be given in paragraph 2.
  11. If no Form 74.8 Affidavit of Execution of Will or Codicilis found, an affidavit must be filed explaining this, and setting out the efforts made to find the persons who witnessed the testator’s signature on the will. (The testator is the person who made the will).
  12. On Form 74.13 Certificate of Appointment of Estate Trustee With a Will, the address of the court must be typed under the Registrar’s signature line. Do not fill in the date on this form. Also file a plain, unmarked copy of the will. The certificate of appointment and the copy of the will attached will be impressed with the court seal.

Issues specific to Applications for a Certificate of Appointment of Estate Trustee Without a Will

  1. You must be an Ontario resident to apply. See section 5 of the Estates Act on the E-laws website: http://www.ontario.ca/laws/statute/90e21#BK33
  2. If you answer a question that makes it unclear as to whether an earlier marriage of the deceased person had been ended by divorce, you must attach a schedule to the application with information including the date of the marriage, date of divorce and steps that have been taken to verify that the divorce has taken place.
  3. On Form 74.14 Application for Certificate of Appointment of Estate Trustee Without a Will (Individual Applicant), where you explain why you are entitled to apply for the certificate of appointment of estate trustee, you must include information relating to consent given by persons who are entitled to a share in the distribution of the estate and who, together, have a majority interest in the value of the assets of the estate.
  4. Depending on the priority set out in Part II (Intestate Succession) of the Succession Law Reform Act, a Form 74.18 Renunciation of Prior Right to a Certificate of Appointment of Estate Trustee Without a Will may need to be filed. See the Act on the E-laws website at: http://www.ontario.ca/laws/statute/90s26#BK83
  5. On Form 74.14 Application for Certificate of Appointment of Estate Trustee Without a Will (Individual Applicant), in the section where person persons entitled to share in the estate are listed, if a person who is not a spouse, child, parent, brother or sister of the deceased is listed, you must make clear the family relationship between the deceased and that person, which explains why he or she is entitled to share in the estate.
  6. All persons entitled to a share in the estate must be served Form 74.17 Notice of an Application for a Certificate of Appointment of Estate Trustee Without a Will,or an explanation as to why a person has not been served must be indicated on Form 74.16 Affidavit of Service of Notice (e.g. address unknown, person has died).
  7. On Form 74.20 Certificate of Appointment of Estate Trustee Without a Will, the address of the court must be typed under the Registrar’s signature line. Do not fill in the date on this form.
  8. Form 74.17 Notice of an Application for a Certificate of Appointment of Estate Trustee Without a Willmust be marked as “Exhibit ‘A’” to Form 74.16 Affidavit of Service of Notice. The exhibit must be stamped and signed by the same commissioner for taking affidavits.

We hope this list is helpful to you in completing your court documents. Below are links to helpful resources:

Estates Information and Resources: