Can Siblings Fight Over Who Administers an Estate With No Will in Ontario?

When a parent dies without a will, brothers and sisters sometimes disagree about who should take charge. One may want to act quickly, another may not trust the first, and others may want nothing to do with it.

This article explains who has priority to apply in Ontario, how consent and renunciation work, and when the court decides. It describes how things generally work, and a lawyer can advise on a specific dispute.

Who has the right to apply

When there is no will, the person who administers the estate is appointed by the court. Under the Estates Act, administration may be granted to the person the deceased was married to immediately before death, or a person living with the deceased in a conjugal relationship outside marriage immediately before death, or to the next of kin, or to both.

In practice, the spouse or common-law partner usually has the first right to apply. A close adult relative, meaning a child, parent, grandchild, sibling or nephew or niece, can apply after them, and the court may appoint the relative it considers most appropriate.

Being entitled to apply is not the same as inheriting. Siblings of the deceased inherit only when there is no spouse, issue or parent. Where children inherit, the property is generally distributed equally among them. A person who is appointed holds the property as trustee for those entitled.

How agreement works between family members

The simplest way to avoid a dispute is agreement. An applicant for appointment files a Consent to Applicant's Appointment as Estate Trustee (Form 74G, Part B), and a Renunciation (Form 74G, Part A) is needed from anyone entitled to priority who has not joined the application.

If the persons entitled to administration, or a majority of those resident in Ontario, ask for another person to be appointed, the right passes to the person they name, subject to the court's power to decide otherwise. Siblings can therefore agree that one of them acts, or that a different person acts, and put that agreement into the court documents.

When siblings cannot agree

If one person refuses to consent or renounce, the matter may need to go before a court. The court is not obliged to grant administration to the person otherwise entitled. Where necessary or convenient, for example because of insolvency or other special circumstances, it may appoint anyone it thinks fit, on security the court directs.

This means a court has real discretion. Having priority helps, but it does not guarantee appointment. Reasons that might matter include conflict between relatives, concerns about debts, or whether a person can provide the required security. The facts of each family differ, so a lawyer can advise on how a dispute is likely to be approached.

• Raise concerns early and in writing, so the family knows who objects and why.
• Ask whether those with priority will renounce or name someone they trust.
• Consider whether a neutral person could be named if the family cannot agree.
• Do not distribute or sell estate property before someone is appointed, since the estate trustee is the only person with legal authority to manage or distribute it.

Bonds and other practical hurdles

A bond is required when the deceased died without a will, among other situations. The bond is for double the sworn value of the deceased's property, unless a judge orders otherwise. The surety can be an insurer licensed in Ontario or personal sureties, with two personal sureties needed for estates over $100,000 and one for $100,000 or less.

No bond is required for a surviving spouse where the estate's net value does not exceed the preferential share and an affidavit setting out the estate's debts is filed. A judge may also reduce or dispense with the bond in special circumstances. These requirements can affect which sibling is able to act.

What to do next

• Find out who has priority: a spouse or partner first, then close adult relatives.
• Talk to your siblings about whether one person can act with the others' consent or renunciation.
• Gather a list of the deceased's assets and debts so the bond and value can be estimated.
• Avoid acting on the estate before you have authority.
• Get legal advice early if anyone objects, since a court may have to decide who is appointed.

Frequently asked questions