What If the Other Relatives Won't Consent to My Appointment?

When someone dies without a will, the court will not appoint an administrator just because you are willing. Other relatives who have a claim to the role or a share of the estate generally have to step aside or agree, or at least be told about the application.

This article explains the paperwork, what you can do if some relatives refuse or cannot be found, and when it may be time to ask a court for help. It is general information only, and the rules are detailed enough that a lawyer should review your particular situation.

Renunciations and consents are different

An application for a certificate of appointment of estate trustee is made on Form 74A, with an affidavit of service (Form 74B) and a draft certificate (Form 74C). Where there is no will, two kinds of paperwork come into play.

A renunciation means the person gives up their own right to be appointed. A consent means the person agrees to your appointment. A relative can often do one without the other, and it is worth asking which you actually need from each person.

Where you fit in the priority order

Ontario.ca says that if there is no will, the deceased's spouse or common-law partner usually has the first right to apply. If that person does not apply, a close adult relative such as a child, parent, grandchild, sibling, or niece or nephew can apply, and the court may choose whichever relative it considers most suitable.

On an intestacy, the court may commit administration to the spouse, the next of kin, or both, as it sees best. Notice that priority to apply is a separate question from who inherits. An unmarried common-law partner is not a spouse for intestacy, yet they are listed with first right to apply.

If some relatives refuse or cannot be found

You do not necessarily need every relative to agree. The consent rule is based on a majority interest in the value of the estate's assets, not on unanimity. But a refusal from someone with equal or higher priority is a bigger problem, because a renunciation is required from each such person who has not joined in the application.

• A relative can join in the application with you instead of renouncing.
• A relative who refuses to renounce may be seeking appointment themselves, which can turn into a contested application.
• If someone cannot be located, document every step you took to find them. What the court will accept in that situation depends on the facts, and a lawyer can advise on options.
• The rules also include a process for applications or motions for directions.

The Rules of Civil Procedure also provide for objections to issuing a certificate and for revoking one. A relative who is unhappy can use those routes, so an unresolved disagreement now can resurface later.

Serving everyone entitled to share

The applicant must serve every person entitled to share in the estate. Service may be by personal service, email, or mail or courier.

• For a minor, serve a parent or guardian and the Children's Lawyer.
• For unborn or unascertained beneficiaries, serve the Children's Lawyer.
• For a mentally incapable person, serve the guardian or attorney for property, or the Public Guardian and Trustee if neither has authority.

If a child is a beneficiary on an intestacy, the Office of the Children's Lawyer must be served, the child receives their share at 18, and a child's inheritance over $35,000 is paid into court rather than held by the estate trustee.

Security and other options

An administrator generally gives a bond to the court, and the judge may reduce or dispense with it in special circumstances. A bond is generally not required for a small estate unless a beneficiary is a minor. Relatives sometimes refuse consent because they worry about how the estate will be handled, and a bond or an agreed co-administrator can address that worry.

If there is no suitable family member, the Office of the Public Guardian and Trustee may apply to act as estate trustee of last resort, but only when its criteria are met, including that there is no known next-of-kin living in Ontario or the next-of-kin are minors or mentally incapable adults.

What to do next

• List everyone who may be entitled to share, and everyone with equal or higher priority than you.
• Ask each person whether they will renounce, consent, or join in the application.
• Work out whether the people who consent hold a majority interest in the estate's value.
• Record your efforts to find anyone you cannot reach.
• Arrange for service on minors and others through the Children's Lawyer or the Public Guardian and Trustee where needed.
• See a lawyer promptly if anyone says they want to be appointed instead.

Frequently asked questions