Consent of Other Heirs to Act as Estate Trustee Without a Will

If you want to act as estate trustee for a relative who died without a will, you may be told that other family members need to sign something. The question is usually what they are signing, whether it is truly necessary, and what happens if a sibling refuses or cannot be found.

This article explains the documents Ontario's guidance mentions, what you must do for relatives whether or not they agree, and how the court can step in. Whether a consent is needed in your situation depends on the facts, so a lawyer can confirm.

Consent, notice and renunciation are different things

People often mix up three separate ideas. A consent is a relative agreeing to someone else acting. A renunciation is a person giving up their own right to act. Notice is simply telling relatives about the application. Each has its own role.

Who has a right to act, and why that matters

Without a will, the spouse or common-law partner has first right to apply, followed by a close adult relative such as a child, parent, grandchild, sibling, nephew or niece. If you are not first in line, the person ahead of you may need to step aside by renouncing, or the court may need to decide. The court may choose the most appropriate relative.

A named trustee under a will can decline, and beneficiaries may then nominate someone else. When there is no will, the court appoints the trustee. Whether a particular consent is legally required in your case is something a lawyer should confirm before you rely on it.

What you must do even if relatives agree

A signed copy of the application must be sent to all estate beneficiaries before filing, by email or by mail or courier to the last known address. The Office of the Children's Lawyer must be served if any beneficiary is under 18, and the Public Guardian and Trustee may need to be served for incapable beneficiaries.

Other documents include Form 74A, an affidavit of service (74B) or lawyer's certificate (74B.1), a draft certificate (74C), and bond forms where applicable. Documents are sworn before a Commissioner for Taking Affidavits. A bond is generally required without a will, unless a judge orders otherwise.

If some relatives refuse or cannot be found

If a relative refuses to consent, you can still send them the required notice. They may then object. If an objection (Form 75.1) is filed, you must give notice to the objector (Form 75.3) and file a copy with an affidavit of service. A judge may review the matter and make an order.

If someone cannot be found, the guidance says notice may go to their last known address. What more the court expects, and whether it will accept that effort, depends on the circumstances and is a good question for a lawyer.

• Document every attempt to contact the person, with dates.
• Send the notice to the last known address and keep proof.
• Expect extra time if a judge must decide an issue.
• If nobody suitable is available, the Public Guardian and Trustee may act as a last resort in limited cases.

What to do next

First, check whether someone else has already applied by contacting the court office where the deceased lived or held property. Then list every relative who might be entitled to a share, and note who has agreed and who has not.

• Confirm there is no will, checking lawyers, relatives and registries.
• Identify who has priority to apply.
• Ask higher-priority relatives whether they will act, renounce or consent.
• Send a signed copy of the application to every beneficiary before filing.
• Keep records of replies, refusals and failed attempts to reach people.
• Talk to a lawyer before filing if anyone objects.

Applications are filed with the Superior Court of Justice in the county or district where the deceased lived. Ontario states applications are typically processed within 15 business days, though disputes or missing documents extend this.

Frequently asked questions