Who Can Administer an Estate in Ontario When There Is No Will?

When someone dies without a will, no one has been named to look after the estate. Family members often disagree about who should step forward, and it can be uncomfortable when several people feel they have a claim to the role.

Ontario has a priority order and some paperwork to go with it. This article explains who can apply, what the others must sign, when a bond is needed and what happens if the family cannot agree. A lawyer can confirm how it applies to your family.

The order of priority

Without a will, the deceased's spouse or common-law partner has first right to apply. Next, a close adult relative can apply: a child, parent, grandchild, sibling, or nephew or niece.

The court may appoint the relative it deems to be the most appropriate person in the circumstances. Under the Estates Act, the Superior Court may commit administration to the spouse or common-law partner, to the next of kin, or to both, as the court sees fit. In special circumstances the court may appoint someone else.

Who applies versus who inherits

Having the right to apply as administrator is a separate question from who inherits. A common-law partner has first priority to apply for the certificate on an intestacy. However, a common-law spouse does not inherit under the Succession Law Reform Act on an intestacy, because 'spouse' for that purpose covers married people only.

An unmarried partner who was being supported by the deceased may still be within a dependant's support claim. That is a different claim from a share on intestacy. A lawyer can explain how the two interact in your situation.

Renunciations and consents

Where there is no will, the applicant must file a renunciation from every person entitled in priority or in equal right to be named estate trustee who has not joined the application. The applicant must also file a consent (Form 74H) from persons entitled to share in the estate who together hold a majority interest in its value at the date of death.

In plain terms, if you are one of three adult children and want to be the administrator, your siblings must either join your application or formally give up their equal right. People with a majority of the estate's value must also consent.

• Renunciation: a person with priority or equal right gives up the right to act.
• Consent (Form 74H): beneficiaries together holding a majority interest agree to the applicant.
• Joining the application: someone with equal right can apply alongside you instead of renouncing.

If any beneficiary is under 18, the Office of the Children's Lawyer must be served when applying for a certificate.

Bond requirements

A bond (security) is required with a probate application when the deceased had no will. It is also required when the deceased had a will but 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.

Acceptable sureties are an insurer licensed in Ontario for surety and fidelity insurance, or personal sureties. Estates over $100,000 need two personal sureties and estates of $100,000 or less need one. A personal surety must be an adult Ontario resident with sufficient assets and cannot be a lawyer or court registrar. The bond is for double the estate's value unless a judge orders otherwise.

The forms are Form 74L for an insurance or guarantee company and Form 74M for personal sureties. Alternatively, a motion to dispense with a bond can be brought. A judge may reduce or dispense with the bond in special circumstances.

Some cases need no bond. These include an intestate administration granted to the surviving spouse where the net estate is within the preferential share and an affidavit of debts is filed, and a small estate. The small-estate exemption does not apply if a beneficiary is a minor or incapable under the Substitute Decisions Act, 1992.

When the family cannot agree

Disagreement usually shows up in one of two ways: someone refuses to sign a renunciation or consent, or someone files a Notice of Objection. If a beneficiary has filed a Notice of Objection (Form 75.1), the applicant must send a notice to the objector (Form 75.3) and file a copy with an affidavit of service. If a judge must decide an issue, a judge reviews the application.

Mandatory mediation under Rule 75.1 applies to objections to a certificate of appointment. Because the court looks for the most appropriate person, it helps to show practical suitability: availability, organization and a willingness to keep everyone informed.

What to do next

• Confirm there is no will, and check where a will might be before assuming there is none.
• List the family members who have equal or higher priority than you.
• Talk with them early about who will apply and whether they will join or renounce.
• Work out the approximate value of the estate to see whether a bond, and what kind, is needed.
• Ask whether any beneficiary is under 18, since that affects service.
• Check whether the institutions holding the assets require a certificate before you apply.
• If anyone is refusing to cooperate, speak with a lawyer before filing.

Frequently asked questions