If someone dies without a Will (intestate), a family member or other eligible person can apply to be named “Estate Trustee Without a Will”. This requires filing for a “Certificate of Appointment” with the Ontario Superior Court of Justice. This certificate gives the applicant legal authority to manage and distribute the deceased’s estate.

When is a Certificate required?

A Certificate is usually required when:

• The estate is large
• The deceased’s assets can’t be accessed or transferred without court approval
• A bank or other institution demands proof of authority

In some cases (e.g. small bank accounts or joint ownership), it may be possible to proceed without a Certificate if the financial institution agrees.

Confirming there is no Will

The applicant is required to take reasonable steps to ensure that there is no Will, such as:

• Speaking with family and close contacts
• Checking safety deposit boxes
• Contacting the deceased’s lawyers or financial institutions
• Searching court records or advertising in the Ontario Reports

If after completing a search no Will is found, the applicant must swear an affidavit confirming that they have searched and believe the deceased left no Will.

Before the court can issue a Certificate, the applicant must also obtain confirmation from the Estate Registrar that no Will was deposited.

Who can apply to be an Estate Trustee Without a Will?

The Estates Act sets out a list, in order of priority, of people who can apply to be an Estate Trustee without a Will. People higher on the list have the first right to apply. Those lower on the list must get renunciations (Form 74.18) (rejection of their right to apply) from those above them. Also, applicants must reside in Ontario.

Order of priority:

1. Spouse or common-law partner
2. Children
3. Grandchildren
4. Great-grandchildren
5. Parents
6. Siblings
7. Grandparents
8. Aunts/uncles, nieces/nephews, great-grandparents
9. Other relatives
10. A person/trust company with consent from entitled individuals (Form 74.19)
11. The Public Guardian and Trustee or a creditor

What documents are required for the application?

The application must include the following:

• Applicant’s and deceased’s personal details
• Deceased’s marital status, address, date and place of death
• Value of the estate (real estate in Ontario and personal property worldwide)
• A list of beneficiaries (names, ages, relationships)
• Application – Form 74.14
• Notice of Application – Form 74.17
• Certificate of Appointment – Form 74.20
• Consent (if required) – Form 74.19

The applicant must swear the application as a legal affidavit.

Serving the application

The applicant must provide a copy of the application to all the beneficiaries (everyone entitled to share in the estate). Service must be usually done in person. The court may sometimes permit service to be done by in an alternate way, such as by courier or through the mail.

If a beneficiary is:

• A minor – Notice must also go to their parent or guardian as well as the Children’s Lawyer
• Mentally incapable – Notice must go to their guardian, lawyer, or to the Public Guardian and Trustee

Filing the application

The application must also be filed with the court. In addition, after serving notice of the application to the beneficiaries, the applicant must file the following documents with the Superior Court of Justice:

• Form 74.16 – Affidavit of Service
• Form 74.43 – Affidavit Verifying Estate Accounts
• Form 74.18 – Renunciations (if needed)
• Payment of the estate administration tax
• An administration bond, which is almost always required unless waived by the court

After all the required documents have been submitted, the registrar will either issue the certificate or refer the matter to a judge.

Getting the legal help you need

Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer. A lawyer can also provide advice and assistance settling an estate.

								
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