- When there is no will, the spouse or common-law partner has the first right to apply, followed by a close adult relative.
- The court may choose the most appropriate relative, so being on the list does not mean you will automatically be the one appointed.
- A common-law spouse has first right to apply but does not inherit under the Succession Law Reform Act.
- A bond is generally required when there is no will.
When someone dies without a will, families often assume the oldest child or the closest relative simply takes charge. In Ontario there is an order of priority for who may apply to the court, and it is not quite the same as who inherits.
This article explains who is first in line, who comes next, what happens when relatives disagree, and what the applicant has to do before and after filing. Every family's facts differ, so a lawyer can confirm how this applies to you.
Why an application is needed when there is no will
Probate is the court process that confirms or grants someone the authority to act for the estate. Ontario says that if the deceased owned real property or assets held by a financial institution, the estate normally has to be probated, and institutions may have their own requirements about the certificate.
With no will, nobody is named as estate trustee, so the court appoints one. The court appoints a trustee where there is no will or no named trustee. The person appointed is often called an administrator, though the role is the same kind of job: gathering assets, paying debts and distributing what is left.
The order of priority to apply
Without a will, the spouse or common-law partner has first right to apply. After that comes a close adult relative: a child, parent, grandchild, sibling, or nephew or niece.
| Position | Who | Notes |
|---|---|---|
| First | Spouse or common-law partner | Has the first right to apply |
| Next | Close adult relative | Child, parent, grandchild, sibling, nephew or niece |
| Last resort | Public Guardian and Trustee | Only if strict conditions are met |
The list of relatives is not a strict ranking among themselves. The court may choose the most appropriate relative. If two children both want the role, for example, the court looks at who is most appropriate rather than automatically choosing the eldest.
Applying is not the same as inheriting
Under the Succession Law Reform Act, an estate without a will generally goes to the spouse and closest next-of-kin. A common-law spouse does not inherit under that Act. That can surprise people, because a common-law partner can still be the person with first right to apply.
A surviving legally married spouse who wants an equalization payment under the Family Law Act must file an Election of Surviving Spouse no later than six months from the date of death. Whether this route suits a particular spouse depends on the facts, and it is worth getting advice early because of the time limit.
When relatives disagree or nobody suitable is available
Disagreement is common. If an objection (Form 75.1) has been filed, the applicant must give notice to the objector (Form 75.3) and file a copy with an affidavit of service. Where a judge must decide an issue, processing takes longer, and matters needing a judge's decision are reviewed by a judge who may make an order.
If no suitable family member is available, the Public Guardian and Trustee may act as estate trustee of last resort. That applies only if the deceased was an Ontario resident or owned Ontario real estate, there is no will or the executor has died or become incapable, no suitable next-of-kin in Ontario is available, and the estate meets the office's financial criteria.
- Talk to the other relatives early, before anyone files.
- Be ready to explain why you are the most appropriate person to act.
- Keep records of who you contacted and when.
- Get legal advice if an objection is filed.
What to do next
Start by checking whether anyone has already applied. You can contact the court office where the deceased lived or held property to find out if an estate trustee has been appointed. It also makes sense to check for a will, since a will changes who applies. Ways to look include asking the deceased's lawyer, relatives or friends, searching online will registries, or checking court records at the nearest courthouse.
The application goes to the Superior Court of Justice in the county or district where the deceased lived. A signed copy must be sent to all estate beneficiaries before filing, and the Office of the Children's Lawyer must be served if any beneficiary is under 18. Because there is no will, expect a bond to be required unless a judge orders otherwise.
- Confirm the death and gather identifying details.
- Search for a will.
- Check with the court whether someone has already applied.
- List the relatives and their contact details.
- Speak with a lawyer if there is disagreement or a spouse or minor is involved.
Frequently asked questions
Who is first to apply when someone dies without a will in Ontario?
The spouse or common-law partner has the first right to apply. After that, a close adult relative such as a child, parent, grandchild, sibling, nephew or niece may apply.
Does a common-law partner inherit if there is no will?
Not under the Succession Law Reform Act, which does not give a common-law spouse a share of an estate without a will. A common-law partner does, however, have first right to apply to administer the estate. A lawyer can explain whether other claims may be available.
What if two relatives both want to be the administrator?
The court may choose the most appropriate relative. If someone objects, the applicant must give notice to the objector and file proof of service, and a judge may need to decide.
How long does it take to get the certificate?
Ontario states that applications are typically processed within 15 business days, but it takes longer if documents are missing or a judge must decide an issue. Your lawyer or the estates court office where you filed can tell you the status.
Sources
- Ontario.ca – Administering estates — ontario.ca
- Ontario.ca – Apply for probate — 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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