- With no will, the spouse or common-law partner usually has the first right to apply, followed by close adult relatives.
- The applicant files a Consent to Applicant's Appointment as Estate Trustee, and a Renunciation is needed from anyone with priority who has not joined.
- A bond is required when the deceased died without a will, though there are exceptions for some surviving spouses and small estates.
When someone dies without a will, no executor is named, so a family member must ask the court for authority to deal with the estate. That authority matters because the estate trustee is the only person with legal authority to manage or distribute an estate.
This article explains who can apply, the forms involved, and the estate administration bond that is usually required on an intestacy.
Who can apply
Administration on an intestacy 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 (child, parent, grandchild, sibling or nephew/niece) can apply after them, and the court may appoint the relative it considers most appropriate.
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. The court is not obliged to grant administration to the person otherwise entitled and, where necessary or convenient, may appoint anyone it thinks fit, on security the court directs.
Forms and what the court needs
An applicant for appointment as estate trustee 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 to Applicant's Appointment as Estate Trustee, Form 74G, Part B
- Renunciation, Form 74G, Part A, from anyone with priority who is not joining
- Bond, on Form 74L or 74M, unless an exception applies
- Service on the Office of the Children's Lawyer if a beneficiary is under 18
Your lawyer can confirm the full set of documents for your situation, including the other application materials and the value of the estate to be sworn.
The estate administration bond
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. Bond forms are 74L or 74M (Rule 74.11). Unless a judge orders otherwise, the bond is for double the sworn value of the deceased's property.
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.
When no bond is needed
| Situation | Bond rule |
|---|---|
| Surviving spouse on an intestacy | No bond if the net value does not exceed the preferential share and an affidavit of the estate's debts is filed |
| Small estate | No bond unless a beneficiary is a minor or is incapable under s. 6 of the Substitute Decisions Act, 1992 |
| Special circumstances | A judge may reduce or dispense with the bond, on a Notice of Motion, an affidavit and a draft order |
As of April 1, 2021, a small estate is one valued at $150,000 or less, and it can use the small estate certificate process.
What to do next
- Confirm who has priority to apply, and whether they will join or renounce.
- Gather a list of the deceased's assets and debts to estimate the estate's value.
- Check whether you qualify for a bond exception, or begin arranging a surety.
- Plan for the Estate Administration Tax, since nothing is payable on estates of $50,000 or less.
- Speak with an Ontario lawyer before filing, especially if family members disagree.
Frequently asked questions
Who has the first right to apply when there is no will?
The spouse or common-law partner usually has the first right to apply. A close adult relative can apply after them.
Do I always need a bond?
Usually, yes, when there is no will. A bond is required when the deceased died without a will, but exceptions exist for some surviving spouses, small estates and special circumstances.
How large is the bond?
Unless a judge orders otherwise, the bond is for double the sworn value of the deceased's property.
What if another entitled person does not want to act?
A Renunciation (Form 74G, Part A) is needed from anyone entitled to priority who has not joined the application.
Sources
- Estates Act, R.S.O. 1990, c. E.21 (e-Laws) — Ontario e-Laws
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Ontario.ca – Probate of a small estate — ontario.ca
- Ontario.ca – The Office of the Children's Lawyer and estates and trusts matters — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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