Probate Without a Will in Ontario: Applying as Administrator

When a family member dies without a will, nobody has been named to manage the estate. Often someone has to ask the court for that authority. Land registry staff accept a certificate of appointment of estate trustee as proof of an estate trustee's authority to deal with a deceased owner's land. However, a surviving joint tenant can take the property by registering a survivorship application, and no estate certificate is needed. A few other limited exceptions exist, so how this applies is worth confirming with a lawyer.

This article walks through who can apply in Ontario, what the court process involves, and the points that often surprise families, such as the bond.

Why the court's authority is needed

Probate is the court procedure for giving someone authority to act as estate trustee. In Ontario, the document the court issues is called a Certificate of Appointment of Estate Trustee.

Not every estate needs one. An estate normally must be probated if the deceased owned real property, or assets held by a financial institution, in their own name. Whether this applies to your family depends on the assets involved, so it is worth confirming with a lawyer.

Who can apply when there is no will

The married spouse or common-law partner usually has first right to apply, followed by a close adult relative. The court may appoint the most appropriate relative.

Having the right to apply is not the same as inheriting. Under the Succession Law Reform Act, a common-law spouse does not inherit if there is no will. Questions about who receives what depend on the family situation, so it is worth getting advice early.

The steps, in order

• Gather proof of death, such as a death certificate or court order.
• Prepare the court forms, including Form 74A (application, sworn before a Commissioner for Taking Affidavits), Form 74B or 74B.1 (proof of service) and Form 74C (draft certificate). Rule 74.04 lists the forms needed for each situation.
• Send the signed application to the estate beneficiaries before filing. If a beneficiary is a minor or an incapable adult, notice may also have to go to the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee.
• Arrange the bond if one is required (see below).
• File at the Superior Court of Justice in the county or district where the deceased lived at the time of death, or, if the deceased lived outside Ontario, where they owned Ontario property. Pay the Estate Administration Tax on filing, by certified cheque or bank draft payable to the 'Minister of Finance'.
• Wait for processing, which usually takes 15 business days, longer if documents are missing or a judge must decide an issue.

Applications can be filed by email, but bonds and any other originals must be filed in hard copy at the court location where the application was filed. Tax payments must also be mailed, couriered or paid in person there.

The bond, the tax and smaller estates

A bond is required when the deceased died without a will. It is generally twice the estate's value unless a judge orders otherwise, and a judge can decide on a motion to waive it.

There is an exception for small estates. Subject to the rule for non-resident applicants, no bond is required for a small estate unless a beneficiary is a minor or is incapable. Where there are minor or incapable adult beneficiaries and there is no will, a bond is needed unless the applicant is the deceased's spouse and has filed an affidavit asking the court to dispense with the bond. An applicant who lives outside Ontario, Canada and the Commonwealth still needs a bond.

The Estate Administration Tax is nothing on the first $50,000 and $15 for every $1,000, or part of $1,000, above that. For a $240,000 estate, the tax is $2,850.

Estates valued at $150,000 or less can use the simplified Small Estate Certificate process, with Forms 74.1A, 74.1B and 74.1C. Applications are usually processed within five business days, and the application must be sent to beneficiaries 30 days before filing. Estates over that limit apply for a Certificate of Appointment of Estate Trustee.

After the certificate, and what to do next

Once appointed, the estate trustee winds up the affairs, pays taxes, bills and debts, collects the assets, and distributes the residue to those entitled. Get a CRA clearance certificate before distributing, because a representative who distributes first is personally liable for any tax debt, up to the value of the assets distributed.

If the application is refused, court staff send Form 74O, Registrar's Notice to Applicant, with the reason. Missing material can be supplied when staff ask for it.

• Order several copies of the death certificate.
• List the deceased's assets and debts, with supporting statements.
• Identify every person who may be entitled to a share.
• Ask a lawyer whether a bond or the small estate process applies to you.

Frequently asked questions