- If the trustee named in a will declines or cannot act, the beneficiaries may nominate another person.
- An applicant who was not named in the will generally needs a bond of twice the estate's value unless a judge orders otherwise, but a small estate generally needs no bond unless a beneficiary is a minor or incapable, subject to the non-resident rule.
- The application is filed with the Superior Court of Justice where the deceased lived, or where they owned Ontario property if they lived outside Ontario, and is usually processed within 15 business days.
You open the will and find that the person chosen to be executor has died, or they have told you they will not do it. The estate still has to be dealt with, and the next step depends on who is able and willing to step in.
This article explains who can step in, why a bond may come up, and how the application to the Superior Court of Justice works. In Ontario the executor is called the estate trustee.
First, read the will again
Before anything else, check whether the will names an alternate or a co-trustee. Whether that person can step in depends on the wording of the will and the facts, so it is worth confirming with a lawyer. If the will names no one else, or if the alternate is also unable or unwilling, the other routes below apply.
If the trustee named in a will declines or cannot act, the beneficiaries may nominate another person. How this works in your case depends on the will and your family's situation, so it is worth confirming with a lawyer.
Who can apply to act
If there is a will, the estate trustee named in it usually applies. If there is no will, the married spouse or common-law partner usually has first right to apply, followed by a close adult relative, and the court may appoint the most appropriate relative.
One point catches people out: under the Succession Law Reform Act, a common-law spouse does not inherit if there is no will. Having a right to apply to administer an estate is different from having a right to inherit from it.
The Estates Act says that everyone granted administration, including administration with the will annexed, must give a bond to the judge of the court that makes the grant. There is an exception: subject to the non-resident rule, no bond is required for a small estate unless a beneficiary is a minor or is incapable.
Why a bond may be required
A bond is a form of security for the estate. It is required when the deceased died without a will, when the applicant was not named as estate trustee in the will, or when the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country. It is generally twice the estate's value unless a judge orders otherwise, and a judge can decide on a motion to waive it.
| Situation | Bond |
|---|---|
| Small estate, no minor or incapable beneficiary | Generally none, subject to the non-resident rule |
| Small estate, no will, minor or incapable beneficiary, spouse applying | Not needed if the spouse files an affidavit asking the court to dispense with it |
| Applicant lives outside Ontario, Canada and the Commonwealth | Bond still needed |
| Any case where special circumstances exist | A judge may reduce the bond or dispense with it |
How the application works
The documents depend on the case. They generally include the original will and any codicils, proof of death, and court forms such as Form 74A (the application, sworn before a Commissioner for Taking Affidavits), Form 74B or 74B.1 (proof of service) and Form 74C (draft certificate). Depending on the situation you may also need bond forms 74L or 74M, and renunciations or consents on Form 74G. Rule 74.04 lists the forms needed for each situation.
- Before filing, send the signed application to the estate beneficiaries. Notice may also have to go to the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee if a beneficiary is a minor or an incapable adult.
- File at the Superior Court of Justice in the county or district where the deceased lived at death. If the deceased lived outside Ontario, file where they owned Ontario property. Estate Administration Tax is paid on filing, by certified cheque or bank draft payable to the Minister of Finance.
- The application can be filed by email, but the original will, codicils, bonds and ancillary certificates must be filed in hard copy at the court location.
- Applications are usually processed within 15 business days, and longer if documents are missing or a judge must decide an issue.
For an estate valued at $150,000 or less, a simplified Small Estate Certificate process is available. Larger estates must apply for a Certificate of Appointment of Estate Trustee.
What to do next
- Locate the original will and any codicils, and get a death certificate.
- Confirm in writing whether any named alternate will act.
- Talk with the beneficiaries about who should apply, and record any nomination.
- List the assets so you can estimate the estate's value and the bond question.
- Speak with a lawyer, especially if there are minors, an applicant outside Canada, or disagreement among family.
Frequently asked questions
Can the beneficiaries choose a new estate trustee?
If the named trustee declines or cannot act, the beneficiaries may nominate another person. Before filing, the person applying must send the signed application to the estate beneficiaries. Who ends up acting depends on your situation, so it is worth confirming with a lawyer.
What if there is no will at all?
The married spouse or common-law partner usually has first right to apply, followed by a close adult relative. A bond is generally required when the deceased died without a will. For a small estate, no bond is required unless a beneficiary is a minor or is incapable, subject to the non-resident rule. Even then, no bond is needed if the applicant is the deceased's spouse and files an affidavit asking the court to dispense with it, though a non-resident applicant still needs one.
When is a bond required, and what does it involve?
A bond is generally required when the applicant was not named in the will, and it is generally twice the estate's value unless a judge orders otherwise. A judge may reduce or dispense with it in special circumstances. What a bond would cost or involve in your case depends on your situation, so it is worth confirming with a lawyer.
How long will it take?
Applications are usually processed within 15 business days, but it takes longer if documents are missing or a judge must decide an issue. Small estate applications are usually processed within five business days.
Sources
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Superior Court of Justice – Consolidated Civil Provincial Practice Direction — ontariocourts.ca
- CanLII – Estates Act, R.S.O. 1990, c. E.21 — canlii.org
- Ontario.ca – Probate of a small estate — ontario.ca
- Ontario.ca – Administering estates — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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