Probate/Filing Fee
Howard Nightingale has successfully practiced Corporate and Commercial law in Toronto since 1982.
What was formerly and familiarly called probate is now referred to as a Certificate of Appointment. The change in title is part of the revised Ontario law, 2015 which made substantive changes to the requirements of “probate” and to the position of executor. The Ontario government provides a helpful page explaining the probate process and filing fees, stating the fee structure of $15 per thousand of the value of the estate exceeding $50,000 and also provides a handy calculator. See ontario-probate.ca/probate-basics/probate-fees-taxes. Officially, however, the term probate is now replaced by the Estate Administration Tax and by its initials as used on the government’s website, EAT.
The Deed of Gift
Not readily available on the government’s web pages is an instrument called the Deed of Gift; the testator – the person drawing up the will – gifts a specific item to a designated person. It can be employed multiple times, so that the testator can leave a valuable piece of jewelry to one child, a painting to another, a watch to a sibling, and so on. However, testators retain the gift and its use during their lifetime, as opposed to giving an outright gift, with possession going to the beneficiaries after their demise, or should they become mentally incompetent. Because it has been legally set aside as a Deed of Gift during their lifetime, it is excluded from probate, and its value removed from probate fee calculation, lowering the estate tax. CRA restrictions do apply, however; legal advice can determine which of your assets can be shielded by the Deed of Gift, and what cannot.
Deed of Gift: revocable and irrevocable
As the terms imply, one type of Deed of Gift can be revoked, or canceled at any time prior to it being given to the intended recipient, while the other cannot. A revocable Gift of Deed might not be deemed exclusive to probate, defeating its purpose. Such items will be decided individually; should judgment go against the item, the gift will be included in the probate fee structure. If the testator is certain of the decision to give the gift, however, then by deeming it irrevocable, the asset will be excluded from probate. For further discussion please refer to howardnightingale.com/add-deed-gift-will-probate-proof-toolbox
The Deed of Gift and the Dual Will, also discussed in the Estate Planning section as well as in my blog (double-or-dual-wills-how-to-reduce-probate-fees) are two helpful means of reducing your exposure to probate fees.
Frequently Asked Questions
The Ministry of Finance has increased its auditing of estates. Inaccurate valuations or failing to report assets can lead to significant penalties and interest. A lawyer ensures that you are utilizing all legal tax-shielding strategies—like the Deed of Gift—while remaining fully compliant with Ontario law.
Naming a beneficiary on specific accounts (like an RRSP, TFSA, or Life Insurance policy) allows those funds to pass directly to the individual “outside the estate,” meaning they are not subject to probate fees. However, this must be done carefully to avoid conflicting with your Will.
The tax is due at the time the probate application is filed. Furthermore, an Estate Information Return (EIR) must be filed within 180 days of receiving the Certificate of Appointment to confirm the final values and ensure the correct tax was paid.
Only mortgages on real estate located in Ontario are deductible from the value of the estate for tax purposes. Other debts, such as credit card balances, car loans, or line of credits, are generally not subtracted when calculating the initial tax payment.
Yes. When the application for the Certificate of Appointment is filed with the court, the full amount of the Estate Administration Tax must be paid to the Minister of Finance. If the estate does not have enough cash on hand, the Estate Trustee may need to arrange for a bridge loan or seek legal advice on how to access funds.
Dual Wills (or Multiple Wills) allow you to separate assets that require probate (like bank accounts or real estate) from those that do not (like shares in a private corporation or personal belongings). By having a secondary Will for non-probate assets, you avoid paying the 1.5% tax on their value.
An irrevocable Deed of Gift cannot be taken back once signed, which firmly removes the asset from your estate for tax purposes. A revocable Deed of Gift can be cancelled, but it may be scrutinized more closely by the Ministry of Finance and might not effectively shield the asset from probate fees.
A Deed of Gift is a legal instrument where you transfer ownership of a specific asset (like jewelry or art) to a beneficiary while you are still alive, but you retain possession of it until your death. Because the legal title has already moved, that asset is not considered part of your estate for probate purposes, lowering your tax bill.
Yes. While many people still use the term “Probate fees,” the official legal term in Ontario is the Estate Administration Tax (EAT). The “Certificate of Appointment of Estate Trustee” is the document you receive after paying this tax.
The Estate Administration Tax (EAT) is calculated based on the total value of the estate. Currently, there is no tax on the first $50,000 of the estate. For every $1,000 of value above that threshold, the tax is $15. For example, a $500,000 estate would incur $6,750 in tax.
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