On October 16, 2025, the Toronto Lawyers’ Association (the “TLA”) wrote to Ontario’s Attorney General, the Honourable Doug Downey. They proposed a targeted amendment to the Estate Administration Tax Act (the “EATA”) aimed at removing a hurdle in probate: paying the estate administration tax deposit before an estate trustee can access estate funds.
Present Legislative Framework
In Ontario, under the EATA, the estate administration tax is determined by the value of the deceased’s estate as of the date of death. The applicant for the certificate of appointment of estate trustee, also known as probate, must pay the estimated amount of tax as a deposit when applying for the certificate, pursuant to section 3 of the EATA and Rule 74.13(1) of the Rules of Civil Procedure.
As noted by the TLA, section 4(2) of the EATA permits the applicant for the estate certificate to ask the court to defer payment of the tax until after the certificate is issued. However, the applicant must demonstrate that the certificate is urgently needed, that not issuing the estate certificate prior to the deposit being made would cause financial hardship, and that adequate security for the tax payment has been provided to the court.
Key Challenges
The current framework presents a catch-22 for probate applicants, who need an estate certificate to access the deceased’s funds but often require those funds to obtain the certificate. Section 4(2) of the EATA offers a narrow deferral route, allowing the court to defer tax payments. However, as noted by the TLA, the section 4(2) criteria are stringent, requiring urgency, hardship, and security, and are often applied rigidly.
Even when deferrals are granted, deferral applications add time, cost, and burden to limited court resources. This situation has system-wide ripple effects, including delayed tax payments to the province, increased judicial workloads, stalled estate administration, and delays to beneficiaries awaiting distributions.
What is the TLA Proposing?
The TLA is proposing a legislative amendment to enhance judicial flexibility by allowing probate certificates to be issued based on the applicant’s commitment to pay the tax once funds are accessible, under court supervision.
Specifically, the TLA suggests amending section 4(2) of the EATA to permit a judge to issue the certificate based on the applicant’s affidavit and their undertaking, in a representative capacity, to pay the deposit within six months of a deferral order. Additionally, the applicant’s lawyer must undertake to report to the court on whether the payment has been made within this timeframe, along with any other materials the judge may require.
With the proposed amendment, if the applicant pays within six months, the lawyer informs the court. If not, the lawyer reports the failure and may request an extension, allowing the court to issue further orders under the EATA, including penalties. The lawyer’s undertaking, as an officer of the court, remains binding even if they are no longer retained by the applicant.
Furthermore, the TLA is proposing amendments to the deferral criteria under section 4(2)(a) to (c) of the EATA, along with the addition of a new criterion (d). These changes would enable a judge to issue a certificate to an applicant before the tax is paid if:
(a) the applicant is unable to access the deceased’s funds to pay the deposit;
(b) it is in the interest of justice to issue the certificate before the deposit is made;
(c) sufficient security for the tax payment has been provided to the court; or
(d) on such other terms as are just.
These modifications would increase court flexibility, resulting in a more efficient and equitable process for probate applicants.
Conclusion
In conclusion, the TLA’s proposal turns probate’s current catch-22 into a more flexible path forward: let courts issue the estate certificate first, then supervise timely payment of the tax once funds are unlocked. By allowing a judge to rely on an applicant’s affidavit and undertaking, backed by counsel’s reporting duty and by widening the section 4(2) criteria, the proposed amendment facilitates the expedient use of estate funds to pay lawful obligations and reach beneficiaries without delay.
To read the TLA’s proposal, please click here.
Thank you for reading!
Ian Hull and Emily Adamo (student-at-law)