Probate Without a Will in Ontario: Who Applies and Who Inherits

When someone dies without a will, there is no named executor to take charge. A relative usually has to ask the court for authority to deal with the bank accounts, the home and the debts. That authority comes from a court document, and the process has its own rules about who may apply.

This article explains who can apply, what the court usually asks for, and how the law decides who receives the estate. Every estate is different, so use this as a map and not as advice on your own file.

Who can apply to administer the estate

With no will, the person who applies is called an administrator. Ontario guidance says a spouse or common-law partner generally has the first right to apply, followed by close adult relatives: a child, parent, grandchild, sibling, nephew or niece. The court may appoint whichever relative it considers most appropriate.

The Estates Act also lets the court grant administration to the spouse or common-law partner, to the next of kin, or to both, as it thinks best. If several next of kin are equally related, the court may choose one or more of them.

Two exceptions matter. A person who does not live in Ontario generally cannot be granted letters of administration, except when a grant is resealed. And if there is no adult next of kin in Ontario, the local registrar must notify the Public Guardian and Trustee before letters go to anyone else. The Public Guardian and Trustee may apply within 30 days of notice, and letters may issue sooner if it consents.

Consents, bonds and small estates

When there is no will, the rules require consents on Form 74G from beneficiaries who together hold a majority interest in the value of the estate's assets at the date of death.

A person granted administration must give a bond to the court. It is generally for double the sworn value of the estate, though a judge may reduce it or dispense with it. Ontario guidance says a bond is required if there is no will. Personal sureties must be adult Ontario residents: two if the estate is over $100,000, one if it is $100,000 or less.

• A surviving spouse on an intestacy needs no bond if the net value is within the preferential share and an affidavit of debts is filed.
• A small estate needs no bond unless a beneficiary is a minor or is incapable under the Substitute Decisions Act, 1992.
• The small-estate amount is $150,000, and estates of that value or less can apply for a Small Estate Certificate.

What the application involves

The checklist includes a Form 74A application, proof of service on beneficiaries, a draft certificate on Form 74C, proof of death, consents on Form 74G and a bond where required. The application and affidavits must be signed before a Commissioner for taking affidavits, who must also sign them.

File in the county or district where the deceased had a fixed place of abode. If there was none in Ontario, file where the property is located. Applications may be filed with the Superior Court of Justice by email, but original documents such as bonds must still be filed on paper.

The application must be served on every beneficiary before filing. If a beneficiary is a minor, service is also required on the minor's parent or guardian and the Children's Lawyer. For a mentally incapable adult, service goes to the guardian, the attorney, or the Public Guardian and Trustee, depending on who has authority. Applications are typically processed within 15 business days, and the registrar may ask for more information.

Who inherits when there is no will

A spouse with no surviving children or other issue takes the whole estate. A spouse with issue takes the preferential share, then one-half of the rest if there is one child, or one-third if there is more than one child. The preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for earlier deaths.

Two exceptions can change the result. A spouse who was separated at death has no intestacy entitlement, using the same test as for wills where the qualifying event happened on or after January 1, 2022. A common-law partner does not inherit under the Succession Law Reform Act when there is no will, although the Estates Act still allows that partner to be granted administration.

With no spouse, the order is the deceased's issue, then parents equally, then brothers and sisters, then nephews and nieces equally, then next of kin of equal degree. If nobody survives, the property becomes the Crown's. An estate cannot be distributed on an intestacy until one year after the death.

What to do next

• Confirm that no will exists by searching the usual places before applying.
• List the family members who may have a claim, including children, a spouse and any common-law partner.
• Gather proof of death, asset and debt information and addresses for every beneficiary.
• Work out whether a bond, sureties or a Small Estate Certificate are in play.
• Speak with a lawyer if the family disagrees, a beneficiary is a minor, or a partner's status is unclear.

Frequently asked questions