Applying for a Certificate of Appointment Without a Will in Ontario

When someone dies without a will, no executor is named, so a family member must ask the court to appoint an estate trustee. The estate trustee is the only person with legal authority to manage or distribute an estate.

This article sets out who may apply, the forms and bond that are usually involved, and how the Estate Administration Tax works. Every estate is different, so use it as a roadmap and not a substitute for advice.

Who can apply

Under the Estates Act, administration may be granted to the person the deceased was married to immediately before death, or a person living with them in a conjugal relationship outside marriage, or to the next of kin, or to both. The spouse or common-law partner usually has the first right, and a close adult relative (child, parent, grandchild, sibling, niece or nephew) can apply after them. The court may appoint the relative it considers most appropriate.

If the people entitled, or a majority of those resident in Ontario, ask for someone else to be appointed, the right passes to the person they name. The court is not bound to appoint the person otherwise entitled and, in cases such as insolvency or other special circumstances, may appoint anyone it thinks fit on security the court directs.

Forms you will usually need

• Form 74G, Part B: the Consent to Applicant's Appointment as Estate Trustee, filed when there is no will.
• Form 74G, Part A: a Renunciation from anyone entitled to priority who has not joined the application.
• Bond forms 74L or 74M, where a bond is required.
• An Estate Information Return, due within 180 calendar days of receiving the certificate.

Other documents and steps may also apply to your estate, so check the current court materials or ask a lawyer to confirm the full list for your situation.

The bond

A bond is a guarantee that protects the estate and the people entitled to it. One 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 province or territory, or a Commonwealth country. It 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.

Estate Administration Tax and small estates

Nothing is payable 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.

Ontario also has a small estate process. 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 with application Form 74.1A and draft Small Estate Certificate Form 74.1C. Whether it suits your estate, for example where real estate or minor beneficiaries are involved, depends on the facts and is worth confirming.

After you are appointed, and what to do next

The certificate gives you authority to manage estate assets and pay estate debts. Funeral expenses and debts are paid before distribution, and you are responsible for taxes, bills and other debts. If you give the required notices to creditors and then distribute, you are not liable to someone whose claim you had no notice of at the time.

If a minor is entitled to a share of an estate with no will, what happens depends on the amount. Where the share 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, and the applicant must serve the Office of the Children's Lawyer when a beneficiary is under 18. Where the share is under $35,000, the money can be paid to the parent the child lives with, or to the person with lawful custody, to hold until the child turns 18.

• Confirm that no will exists and who is entitled to priority.
• Ask anyone with priority who is not joining you to sign a renunciation, or have them join the application.
• Estimate the estate's value, since it drives the bond and the tax.
• Line up sureties or an insurer if a bond is needed.
• Diarize the Estate Information Return deadline once the certificate issues.
• Speak with a lawyer if relatives disagree, a beneficiary is a minor, or the estate may be insolvent.

Frequently asked questions