By Raz Toor, Business and Estates Lawyer, Falcon Law PC
Not every estate in Ontario needs to go through probate.
That sometimes surprises families because “probate” is often spoken about as though it is an automatic step after someone dies. In reality, whether a Certificate of Appointment of Estate Trustee is required usually depends on what the deceased owned and what the person or institution holding those assets requires before releasing them.
I generally do not start by asking how much the entire estate is worth. I start by looking at the assets one by one.
Was the home owned jointly? Does the RRSP have a named beneficiary? Is there a bank account solely in the deceased’s name? Are there shares of a private corporation? Does the executor need to sell real estate?
Once we understand the assets, it becomes much easier to determine whether probate is required at all and, if it is, which assets actually need to be included.
Falcon Law PC assists executors, families and business owners with probate, estate administration and estate planning in Ontario.
What Does Probate Actually Do?
Probate is the court process commonly used to obtain a Certificate of Appointment of Estate Trustee.
Where there is a will, the certificate confirms the estate trustee’s authority and the will being relied upon. Where there is no will, the court can appoint someone to administer the estate.
The important practical point is that probate often gives banks, purchasers, investment institutions and other third parties comfort that they are dealing with the person legally entitled to administer the estate.
But not every asset holder requires a court certificate.
Ontario itself recognizes that probate is not always necessary and recommends determining whether the person or institution holding the estate asset actually requires a Certificate of Appointment before applying.
Jointly Owned Property May Pass Outside the Estate
One of the most common situations where probate may not be required for a particular asset is property held in joint tenancy with a right of survivorship.
For example, if spouses own their home as joint tenants and one spouse dies, the deceased owner’s interest will generally pass to the surviving joint tenant by right of survivorship rather than under the will.
The surviving owner can then usually deal with the title through the appropriate survivorship registration rather than having the deceased’s interest transferred through the estate.
This is very different from property owned as tenants in common. A deceased person’s tenant-in-common interest normally remains part of their estate and may need to be dealt with through the estate administration process.
Joint ownership can therefore make a significant difference, but I would not assume that every jointly titled asset automatically avoids the estate.
Joint Ownership With an Adult Child Can Be More Complicated
This is an area where families sometimes run into trouble.
A parent may add an adult child to a bank account or even to title to a property for convenience. The family then assumes that the asset automatically belongs to the child when the parent dies.
That may not necessarily be the legal result.
Canadian estate law recognizes that questions of beneficial ownership can arise where property was placed jointly with an adult child without clear evidence that the parent intended to make a gift of the beneficial interest.
In other words, the name on the account is important, but the intention behind the arrangement can also matter.
I therefore would not recommend adding children to property simply as a probate-avoidance technique without looking at the estate, tax and family consequences first.
Assets With Named Beneficiaries Can Often Pass Outside Probate
Another common category is an asset with a valid beneficiary designation.
Life insurance is the obvious example. If a policy has a properly designated individual beneficiary, the insurer will generally pay the death benefit directly to that beneficiary rather than to the estate.
Registered accounts can operate similarly.
An RRSP, RRIF or TFSA may have a designated beneficiary or successor holder, depending on the account and circumstances. Where the designation is effective, the asset may pass directly rather than being administered under the will.
This can reduce the value of the estate requiring probate.
There can still be significant tax issues. An asset passing outside probate does not necessarily mean there are no income tax consequences arising from the person’s death.
Beneficiary designations should therefore be considered together with the person’s will and overall estate plan.
A Bank May Release a Small Account Without Probate
Sometimes probate is unnecessary simply because the financial institution is prepared to release the funds without it.
There is no universal dollar amount at which every Canadian bank must waive probate.
A bank may review the size of the account, the will, the relationship of the executor to the deceased and the risk involved in releasing the money. The institution may also require an indemnity or other documentation before agreeing to release funds.
This is why I usually recommend contacting the financial institution before automatically starting a probate application.
If the deceased had one modest bank account and no other estate assets requiring probate, it may be possible to administer the estate without obtaining a certificate.
If the same person had a large investment portfolio solely in their name, the institution may take a very different position.
A Small Estate Is Not Automatically Exempt From Probate
This is an important distinction.
Ontario has a simplified Small Estate Certificate procedure for estates valued at up to $150,000.
That does not mean estates below $150,000 automatically avoid probate.
If an institution requires a court certificate to release an asset, the executor may still need to apply. The difference is that an eligible estate can use Ontario’s simplified small-estate process.
Likewise, an estate worth considerably more than $150,000 might theoretically require no probate at all if all of the assets pass outside the estate or can otherwise be dealt with without a certificate.
The total value is therefore not the only issue. The structure of the assets matters more.
Real Estate Often Makes Probate More Likely
If the deceased owned Ontario real estate solely in their own name and the estate trustee needs to sell it, probate will normally be required.
Ontario’s own probate guidance specifically identifies real property that does not pass by survivorship, and real property that needs to be sold by the estate, as common situations where a Certificate of Appointment is required.
That is why I would be cautious about signing an agreement of purchase and sale for estate property before confirming the estate trustee’s authority and the probate strategy.
Estate real estate transactions can involve timing issues that do not arise in an ordinary sale.
Where property needs to be sold or transferred, we can coordinate the estate administration with Falcon Law PC’s Ontario real estate practice.
Private Company Shares Can Be Different
This is where probate planning becomes particularly relevant for business owners.
A person may own shares of a privately held corporation that do not necessarily require a probated will before the corporation can recognize the executor or complete the transmission of the shares.
Whether probate is required can depend on the corporation’s records, the share structure, the will, the directors and the circumstances surrounding the company.
Ontario estate planning has long used multiple wills in appropriate circumstances so that assets likely to require probate are dealt with under one will and certain private assets that may not require probate are dealt with under another.
Private-company shares are one of the assets commonly considered in that type of planning.
This is particularly relevant in my practice because many of our estate-planning clients are also business owners. Their estate plan cannot be prepared properly without understanding the corporations they own.
If someone owns an operating company, holding company or several related corporations, I want to understand the shareholdings and corporate records before deciding how those interests should be addressed in the will.
Multiple Wills Can Reduce Probate Exposure, but They Need to Be Drafted Properly
The idea behind multiple wills is fairly straightforward.
The primary will can govern assets for which institutions are likely to require probate. A secondary will can deal with qualifying assets that may be administered without obtaining a Certificate of Appointment.
The executor may then probate only the primary will.
If properly structured and appropriate to the client, this can reduce Estate Administration Tax because assets governed by the secondary will are not included in the value submitted with the probate application for the primary estate.
But this is not a strategy I would copy from someone else’s estate plan.
The wills need to work together. Revocation clauses, executor appointments and the description of which assets fall under each will need to be coordinated carefully.
In 2026, we have advised business owners and families whose estates include private corporations, real estate and assets in more than one jurisdiction. Those files are a good example of why estate planning should start with the actual asset structure rather than simply preparing the same will for every client.
If There Is No Will, Probate Is Much More Likely
Where someone dies without a will, there is no executor already named by the deceased.
Someone must generally apply to the court to be appointed as estate trustee without a will before dealing with significant estate assets.
The estate is then distributed according to Ontario’s intestacy rules rather than according to instructions chosen by the deceased.
There may still be assets that pass outside the estate—such as qualifying jointly owned assets or insurance proceeds with designated beneficiaries—but administering the remaining estate without a will will usually require more court involvement.
Probate May Still Be Worth Obtaining Even Where It Is Not Strictly Required
This is another point that gets lost in discussions about “avoiding probate.”
The goal should not always be to avoid the court process at any cost.
There may be circumstances where obtaining a certificate gives the estate trustee valuable certainty about the will and their authority to administer the estate.
For example, if there is uncertainty about the validity of the will, family conflict, a potential competing will or a third party unwilling to recognize the executor, obtaining the court certificate can resolve issues that might otherwise remain open.
Probate has a cost, but it also serves a legal purpose.
What Happens to Estate Administration Tax if Probate Is Not Required?
Ontario’s Estate Administration Tax is triggered when an estate certificate is applied for and issued.
If no estate certificate is required and none is obtained, Estate Administration Tax is not payable merely because someone has died.
This is one reason probate planning can have a meaningful financial effect for larger estates.
However, probate tax should not become the only objective of estate planning.
A family can create a much larger legal or tax problem by transferring assets into inappropriate joint ownership simply to save Estate Administration Tax.
I would rather pay some probate tax under a clear estate plan than save that tax through a structure that creates uncertainty over who actually owns the property.
How Do You Know Whether Probate Is Required?
For a new estate file, I normally start by preparing an asset list.
For each asset, we look at how it is owned and what will happen to it on death.
A jointly held home may pass by survivorship. A life insurance policy may have a named beneficiary. A bank account may require probate. Private-company shares may be capable of being administered under a secondary will. A property solely in the deceased’s name may require a certificate before it can be sold.
Once that exercise is complete, we can determine whether the estate needs probate and what the probate value is likely to be.
That is a much better approach than assuming every asset owned by the deceased must automatically be included in a probate application.
Can You Avoid Probate Through Estate Planning?
In some cases, yes.
Beneficiary designations, appropriate joint ownership, trusts and multiple-will planning can all affect which assets require probate.
The correct strategy depends on the client.
A person with a house, ordinary investment account and two adult children may need a very different plan from a business owner with several corporations, commercial real estate and assets in both Canada and the United States.
That is also why probate planning should be reviewed when a person’s assets change. A will prepared when someone had very little may no longer make sense after they have built a substantial business or acquired several properties.
How Falcon Law PC Can Help
Falcon Law PC assists executors, families and business owners with probate applications, estate administration, wills, powers of attorney and estate planning throughout Ontario.
For an existing estate, we can review the will and assets to determine whether probate is required and which assets need to be addressed through the court process.
For clients planning ahead, we can consider beneficiary designations, business interests, real estate and multiple-will planning where appropriate.
You can learn more about our Estates, Probate & Wills practice.
This article provides general legal information only and does not constitute legal, tax or estate-planning advice. Whether probate is required depends on the deceased’s assets, ownership structure, will, beneficiary designations and the requirements of the institutions or parties dealing with the estate.