No Executor Named in the Will: Applying as Estate Trustee With a Will

You have found a valid will, but it never says who the executor is. In Ontario the person who administers an estate is called the estate trustee, and without a named one, the family often does not know who can take charge, who can speak to the bank, or what the court will want to see.

This article walks through how the process generally works when a will exists but names no estate trustee. Every estate is different, so treat it as a map of the route, not a substitute for advice on your own file.

Why a missing executor changes the process

Probate asks the court to formally approve the will and to confirm or grant authority to act. If the deceased owned real property or assets held by a financial institution, the estate normally has to be probated, and it is wise to ask the institution whether it wants a certificate before you apply.

Ordinarily the person named in the will applies. Where there is a will but no named trustee, the court is the one that appoints a trustee. So the practical question becomes: who should come forward and ask the court to appoint them?

Who can apply when no one is named

The order of priority that applies when there is no will is spouse or common-law partner first, followed by a close adult relative such as a child, parent, grandchild, sibling, nephew or niece, and the court may choose the most appropriate relative. A will with no executor is a different situation, so that order is not automatically the answer. Who applies depends on the facts of your situation, so it is worth confirming with a lawyer. A lawyer can confirm the best fit for your facts.

Whoever applies, it helps if the people entitled to the estate are on the same page before anything is filed. Disagreement can lead to an objection and a longer process.

Bond, notice and consents

A bond is required if the applicant is not the named trustee. It is generally double the estate's value unless a judge orders otherwise, and a judge can decide a bond is not required.

Sureties on a bond can be a licensed Ontario insurer or personal sureties. Where personal sureties are used, an estate over $100,000 needs two, and one is enough for $100,000 or less. The bond forms are 74L or 74M.

Before filing, a signed copy of the application must be sent to all estate beneficiaries by email or by mail or courier to their last known address. The Office of the Children's Lawyer and the Public Guardian and Trustee may need to be served where a beneficiary is a minor or incapable. A consent (Form 74G Part B) or renunciation (Form 74G Part A) is included where it applies.

Forms, filing and timing

• Application, Form 74A
• Affidavit of Service, Form 74B, or a Lawyer's Certificate, Form 74B.1
• An affidavit about the will, Form 74D, 74E or 74F
• A draft certificate, Form 74C
• A bond, Form 74L or 74M, and consent or renunciation forms where applicable

Documents are sworn before a Commissioner for Taking Affidavits. The application goes to the Superior Court of Justice in the county or district where the deceased lived, and it can be filed by mail or by email under the court's practice direction.

Ontario says applications are typically processed within 15 business days, but it takes longer if documents are missing or a judge must decide an issue. A refusal comes as a Registrar's Notice (Form 74O) stating the reason. If someone has filed an objection (Form 75.1), the applicant must give notice to the objector and file a copy with an affidavit of service.

Tax and duties once you are appointed

Estate administration tax is $15 for every $1,000 of estate value, with the first $50,000 exempt, for applications made on or after January 1, 2020. The value is rounded up to the nearest thousand, and the government's example is a $240,000 estate owing $2,850. The tax is paid as a deposit when you apply and becomes the tax once the certificate is issued.

An Estate Information Return must be filed within 180 calendar days after the certificate is issued, even if the calculated value is $0. Before distributing property, a representative should get a CRA clearance certificate (Form TX19), because a representative who does not can be liable for unpaid tax up to the value of what was distributed.

What to do next

• Locate the original will and confirm it is the most recent one; options include the deceased's lawyer, relatives, online will registries and the nearest courthouse.
• Contact the court office where the deceased lived to check whether an estate trustee has already been appointed.
• List the assets and debts, and ask each financial institution what it requires.
• Speak with the beneficiaries about who should step forward.
• Talk to a lawyer about who should apply, whether a bond is needed and how to approach the court.

Frequently asked questions