Help! I Need To Get Probate, But Can't Pay the Fee

In Ontario, when an executor applies for a certificate of appointment of estate trustee (“probate”), the Estate Administration Tax Act requires her to pay the estate administration tax (a “probate fee”).  The amount of the probate fee payable will depend on the value of the assets listed on the probate application and is $5 per $1,000 up to $50,000 and $15 per $1,000 by which the value of the estate exceeds $50,000. 

In some situations, the estate will lack the liquidity to pay the probate fee.  This typically occurs when there is no cash in the estate (such as when the deceased’s bank accounts were held jointly with a right of survivorship) and there is an asset, such as a house, which the estate trustee requires probate to deal with.

In circumstances such as this, s. 4 of the Estate Administration Tax Act allows the estate trustee to apply to the court for a grant of probate prior to the probate fee being paid.  In order to obtain probate in advance of the fee being paid, s. 4(2) provides that the estate trustee must file an affidavit (and such other material as the court requires) that satisfies the court of the following:

  • Probate is urgently required;
  • Financial hardship would result if probate is not granted before the probate fee is paid; and
  • Sufficient security has been furnished for the payment of the probate fee.    

In situations where there is cash in the estate, financial institutions typically won’t release it to an estate trustee prior to probate being granted.  However, this doesn’t mean the estate trustee must try to have payment of the probate fee deferred. 

In these circumstances, a bank holding enough of the deceased’s cash to satisfy the probate fee will typically release the funds necessary to pay the probate fee (by way of a bank draft made payable to the Minister of Finance ) upon receiving proof of the amount owing.