Can You Distribute an Estate Without Probate When There Is No Will in Ontario?

After a death without a will, families often hope to avoid court and simply divide the bank accounts, the house and the car. It is a fair question, especially when the estate seems modest.

The short answer is that the law gives authority over an estate to an estate trustee, not to relatives informally. This article explains what that means in practice and which options exist to get that authority.

Who has authority over the estate

The estate trustee is the only person with legal authority to manage or distribute an estate. The court's certificate gives the authority to manage estate assets and pay estate debts.

The deceased's property passes to, and vests in, their personal representative, who holds it as trustee for those entitled. That is why the estate trustee is the person with legal authority to manage or distribute the estate, and why how family members might divide things among themselves depends on your situation, so it is worth confirming with a lawyer.

Accounts, property and vehicles

Each type of asset has its own holder, such as a bank, a land registry or a licensing office, and each sets its own paperwork requirements. Whether a particular institution will release an asset without a certificate is something to ask that institution, and a lawyer can confirm.

An unmatured RRSP with no named beneficiary is paid to the estate and divided under the intestacy rules. Real property not sold or conveyed within three years of death vests in the persons beneficially entitled under the intestacy, unless a caution has been registered. That rule is not a shortcut, and it is worth getting advice before relying on it.

Ways to get authority when there is no will

When a person dies without a will, 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.

The spouse or common-law partner usually has the first right to apply, and a close adult relative can apply after them.

No bond is required for a small estate unless a beneficiary is a minor or is incapable under s. 6 of the Substitute Decisions Act, 1992. Estate Administration Tax applies as well. Nothing is payable on estates of $50,000 or less, and above that the tax is $15 per $1,000 (or part) of the value over $50,000.

What to avoid before anyone is appointed

• Do not sell, give away or divide assets on the strength of a family agreement alone, since only the estate trustee has authority to distribute.
• Do not act as though you can manage estate assets or pay estate debts yourself, since the court's certificate is what gives that authority.
• Do not distribute before debts are dealt with, since funeral and burial expenses and debts are paid before the estate is distributed.

What to do next

• List every asset and who holds it, and note which ones may pass outside the estate.
• Ask each bank, registry or insurer what it requires from the family.
• Decide who will apply, and gather consents or renunciations from those with priority.
• Check whether the estate might qualify for the small estate process or a bond exception.
• Speak with a lawyer before moving or selling anything.

If the estate is complicated, or relatives disagree about who should act, getting advice early usually saves time and prevents mistakes.

Frequently asked questions