Two Relatives Both Want to Administer an Intestate Estate

Grief and family history often collide when someone dies without a will. Two siblings, or two adult children, may each believe they should be the one to handle the estate, and neither wants to renounce in favour of the other.

This article explains how the Ontario court approaches that choice, what the process for contesting an application looks like in general, and practical steps to take. Contested applications turn heavily on their facts, so legal advice early is wise.

Who has the first right to apply

According to Ontario.ca, if there is no will, the deceased's spouse or common-law partner usually has the first right to apply. If that person does not apply, a close adult relative can apply, including a child, parent, grandchild, sibling, or niece or nephew.

The key sentence for a dispute is that the court may choose whichever relative it considers most suitable. Being related is not enough to guarantee the role. The Estates Act also says that on an intestacy the court may commit administration to the spouse, the next of kin, or both, as it sees best.

How the court may approach the choice

The legislation gives the court discretion rather than a strict formula, so there is no simple ranking that settles every case. The court may also appoint someone else in special circumstances, for example the insolvency of the otherwise-entitled person, on that person giving the security the court directs.

• Whether the applicant has the support of the other people entitled to share, since consents come from those holding a majority interest in the estate's value.
• Whether the applicant can give a bond, which an administrator generally must do unless the judge reduces or dispenses with it.
• Whether a joint appointment would work. Note that if joint personal representatives are appointed, one of them cannot sell or transfer real property without a judge's authority.
• Whether the estate is small. A bond is generally not required for a small estate unless a beneficiary is a minor.

How a court would weigh these points depends on the evidence and your situation, so it is worth confirming with a lawyer. Keeping your own reasons factual is a sensible approach.

The steps if you disagree

An application for a certificate of appointment is made on Form 74A, with an affidavit of service and a draft certificate. The applicant must serve every person entitled to share in the estate, which is how a competing relative learns of the application.

The Rules of Civil Procedure include a process for objecting to the issuing of a certificate (r. 75.03), revoking a certificate (r. 75.04), applications or motions for directions (r. 75.06), and a certificate of appointment of estate trustee during litigation (r. 74.10). Because the rules have been amended recently, a lawyer should confirm the current rule numbers and steps before you file anything.

Practical points while the dispute continues

Authority matters. The certificate gives authority to manage estate assets and pay debts, and Ontario.ca advises getting it before anyone signs an Agreement of Purchase and Sale for real property. Until someone is appointed, avoid selling, distributing, or giving away estate property.

Property passing by right of survivorship falls outside the estate, so jointly owned property may not be part of what you are arguing about. Understanding what actually belongs to the estate can reduce the stakes of the dispute.

The Office of the Public Guardian and Trustee can sometimes act as estate trustee of last resort, but only in limited situations, such as when there is no known next-of-kin living in Ontario or the next-of-kin are minors or mentally incapable adults, and its financial criteria are met. That is unlikely to be the route where several relatives are willing to act.

What to do next

• Write down who is entitled to share in the estate and who has priority.
• Find out whether the other relative has filed, or intends to file, an application.
• Ask whether a compromise is possible, such as joint administration or one person acting with the others' agreement.
• Collect documents: death certificate, list of assets and debts, and contact details for everyone entitled to share.
• Do not sell or distribute estate property before the court appoints someone.
• Speak with an Ontario estates lawyer early, because deadlines and procedures in contested files matter.

Frequently asked questions