How to Apply to Be Estate Trustee Without a Will in Ontario

When someone dies without a will, nobody has automatic authority to deal with their bank accounts, home or debts. Someone has to ask the court to be appointed, and that person is usually a spouse, partner or close relative.

This article walks through the steps in Ontario: who has priority, how consents and renunciations work, when a bond is needed, what a small estate can do differently, and what tax and notice requirements to expect.

Who can apply and who comes first

Under the Estates Act, administration of an intestate estate may be granted to the person the deceased was married to immediately before death, or a person living with the deceased in a conjugal relationship outside marriage immediately before death, to the next of kin, or to both. In practice, the spouse or common-law partner usually has the first right to apply.

A close adult relative can apply after them. The Ontario government lists a child, parent, grandchild, sibling or nephew or niece, and the court may appoint the relative it considers most appropriate.

Priority to apply is different from inheriting. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will, even though they may have a priority right to apply.

Nominating someone else, and the court's discretion

If the persons entitled to administration, or a majority of those resident in Ontario, ask for another person to be appointed, the right passes to the person they name, subject to the court's discretion.

The court is not obliged to appoint the person otherwise entitled. Where necessary or convenient, for example because of insolvency or other special circumstances, it may appoint anyone it thinks fit, on security the court directs.

Consents and renunciations

When there is no will, the applicant files a Consent to Applicant's Appointment as Estate Trustee (Form 74G, Part B). A Renunciation (Form 74G, Part A) is needed from anyone entitled to priority who has not joined the application.

• Consent (Part B): filed by the applicant.
• Renunciation (Part A): from each person with priority who is not joining the application.
• Anyone with priority who will not sign should be raised with a lawyer early, since the court may need to decide the matter.

Bonds, small estates and tax

A bond is required when the deceased died without a will, when the applicant is not named as estate trustee, or when the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country. The forms are 74L or 74M. The bond is for double the sworn value of the deceased's property, unless a judge orders otherwise.

The surety can be an insurer licensed in Ontario or personal sureties. Two personal sureties are needed for estates over $100,000 and one for $100,000 or less. A personal surety must be an adult Ontario resident with sufficient assets and cannot be a lawyer or court registrar.

The preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for deaths before that date, so check the date of death.

A small estate is one valued at $150,000 or less, and it can use the small estate certificate process (application Form 74.1A, draft Small Estate Certificate Form 74.1C).

Nothing is payable in Estate Administration Tax on estates of $50,000 or less. Above that, the tax is $15 per $1,000 (or part) of the value over $50,000, for certificates requested on or after January 1, 2020. An Estate Information Return is due within 180 calendar days of receiving the certificate.

When an heir is a minor

The applicant must serve the Office of the Children's Lawyer when a beneficiary is under 18. Where a minor's share from an estate with no will is over $35,000, the money is paid into court and held by the Accountant of the Superior Court of Justice until the child turns 18. Where it is under $35,000, it can be paid to the parent the child lives with, or the person with lawful custody, to hold until the child turns 18.

What to do next

• Confirm the date of death and whether there is any will at all.
• List who has priority and whether each will consent or renounce.
• Estimate the value of the estate to see whether the small estate process or a bond exemption may apply.
• Check whether any heir is under 18.
• Speak with a lawyer if relatives disagree or the estate may be insolvent.

Until you are appointed, avoid acting as though you have authority. The estate trustee is the only person with legal authority to manage or distribute an estate, and the court's certificate gives authority to manage estate assets and pay estate debts.

Frequently asked questions