Public Guardian and Trustee: When It Steps In on an Intestate Estate

A letter from the Public Guardian and Trustee (OPGT) can be a surprise, especially while you are grieving. You may wonder why a government office is involved in your relative's estate, or whether you were supposed to contact it.

This article explains the main situations in which the OPGT appears in an Ontario estate with no will, how it differs from the Children's Lawyer, and what to do if you are on either side of the process.

Two different roles for the OPGT

The OPGT can come into an intestate estate in two ways. First, it may have to be given notice because an heir is mentally incapable. Second, it may apply to act as estate trustee itself, as a last resort. Understanding which one applies to you is the first step.

When it must be served

Anyone applying for a certificate of appointment of estate trustee must serve every person entitled to share in the estate. For a mentally incapable person, that means serving the guardian or attorney for property, or the Public Guardian and Trustee if neither has authority. Service may be by personal service, email, or mail or courier.

On an intestacy, the people entitled to share are set by the Succession Law Reform Act: a spouse, then children or other issue, then parents, siblings, nieces and nephews, then more distant kin. If one of those relatives is incapable and has no one with authority to act, the OPGT receives the papers.

When it acts as estate trustee of last resort

The OPGT may apply to be estate trustee of last resort when the deceased was an Ontario resident or owned Ontario real estate, and died without a will, or the executor has died or become incapable. There must also be no known next-of-kin living in Ontario, or the next-of-kin must be minors or mentally incapable adults, and the estate must meet the OPGT's financial criteria after funeral costs and debts.

The specific financial criteria are set by the OPGT, so contact it or a lawyer for the current requirements. If there is nobody entitled to inherit at all, the property becomes the property of the Crown and the Escheats Act, 2015 applies.

Minors are handled by the Children's Lawyer

People often mix up the OPGT and the Office of the Children's Lawyer. Where a child is a beneficiary on an intestacy, the Children's Lawyer must be served on the application. With no will, the child receives their share at 18, and a child's inheritance over $35,000 is paid into court and held by the Accountant of the Superior Court of Justice, or a court-appointed guardian of property, rather than by the estate trustee.

For unborn or unascertained beneficiaries, the Children's Lawyer is also served. Also, an administrator generally gives a bond to the court, and a bond is generally not required for a small estate unless a beneficiary is a minor.

Why the paperwork matters

• Property owned at death, other than property passing by survivorship, vests in the personal representative, who holds it in trust for those entitled.
• The certificate of appointment is the document giving authority to manage estate assets and pay debts.
• Where there are several joint personal representatives, one cannot sell or transfer real property without a judge's authority.
• Rules exist for objecting to a certificate, seeking its revocation and asking the court for directions.

If the OPGT is involved, expect formal steps and documents. Ontario.ca advises obtaining a certificate of appointment before anyone enters into an Agreement of Purchase and Sale for the deceased's real property.

What to do next

• Keep any letter from the OPGT and note the date and file number.
• Work out whether the contact is about an incapable heir or a possible last-resort appointment.
• Gather the death certificate, any power of attorney or guardianship documents, and a list of relatives.
• Before anyone enters into an Agreement of Purchase and Sale for the deceased's real property, note that Ontario.ca advises obtaining a certificate of appointment first.
• Ask an Ontario estates lawyer to explain your role and the next filing step.

Frequently asked questions