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9

Probate | Estate Administration | Wills and Estates (Part 1): Depositing a Will

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date. Laws change often and without notice. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can also contact me directly.

This is the first of a series of MANY blog posts about Estate Administration (formerly called “probate“) in Ontario. Be sure to check them all out! Here, I’ll start off by talking about depositing Wills.

Depositing a Will
You can deposit your Will with the Ontario Superior Court of Justice for safekeeping.

Notice to the Estate Registrar for Ontario
When a Will is deposited with the court, a notice will be sent to the Estate Registrar for Ontario using Rule 74.02(4) and Form 74.1 of the Rules of Civil Procedure. Also, Wills that held for safekeeping for 125 years or more by the Estate Registrar must be deposited with the Archivest of Ontario: Rule 74.02(8) of the Rules of Civil Procedure.

Who May Deposit a Will?
The Rules of Civil Procedure provide that the following individuals can deposit a Will for safekeeping:

  • Testator / Testatrix (person who made the Will);
  • A person authorized in writing by the Testator / Testatrix;
  • A person authorized by the court to deposit the Will;
  • A solicitor who retired from practice and who held the Will at the time of his or her retirement;
  • The Estate Trustee of a deceased solicitor who held the Will at the time of his or her death; and
  • The representative of a trust company that held a Will when it ceased doing business in Ontario.

What is the required Identification and Supporting Documents for Depositing a Will?
When an authorized person is depositing a Will, they must provide proper identification AND an affidavit of execution of the Will (Form 74.8). Depending on WHO is depositing the Will, the documentation they must provide will differ.

Testator: 2 pieces of identification (photo + signature) and affidavit of execution of the Will

Authorized Person: signed letter giving authority, 1 piece of identification, affidavit of execution of Will, and affidavit of condition of Will sworn or affirmed by the depositor (*not Form 74.10*)

Person with Court Order: court-certified copy of the order authorizing the person to deposit the Will, 1 piece of identification, affidavit of execution of Will, and affidavit of condition of Will sworn or affirmed by the depositor (*not Form 74.10*)

Solicitor: signed letter from solicitor saying that he / she has retired; 1 piece of identification, affidavit of execution of Will, and affidavit of condition of Will sworn or affirmed by the depositor (*not Form 74.10*)

Estate of Solicitor: court-certified copy of the certificate of appointment of estate trustee naming the estate trustee (or Will of deceased solicitor naming the depositing estate trustee), 1 piece of identification, affidavit of execution of Will, and affidavit of condition of will sworn or affirmed by the depositor (*not Form 74.10*)

Trust Company: documented written evidence must be given by the representative of the trust company relating to the facts of the company going out of business, identification of the representative that confirms association with trust company, affidavit of execution of Will, and affidavit of condition of will sworn or affirmed by the depositor (*not Form 74.10*)

What is the process for depositing a Will?
When the person depositing the Will has provided all necessary documentation and paid the court fee, the registrar will record the information on the front of an Envelope in the presence of the depositor and place the will in the envelope. Then all necessary information (e.g. name, address, date of Will, date of deposit, date of birth, etc.) of the testator / testatrix will be entered into the estate technology system. This provides notice of the deposit to the Estate Registrar for Ontario.

That’s it! The envelope with the Will and other documents (identification, affidavits, etc.) will be filed in a secure fireproof vault or cabinet.

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.

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