Who Can Apply to Be Estate Trustee When There Is No Will in Ontario?

When someone dies without a will, nobody has been named to handle their affairs. Someone has to ask the court for the authority to do it, and families often wonder who is allowed to, who goes first, and what happens if relatives disagree.

This article explains who can generally apply to administer an estate without a will in Ontario, how the court decides, what a bond is, and what the person appointed has to do. It does not cover how the estate is divided, which is a separate question.

Who usually has the first right to apply

Ontario's probate guidance says that when there is no will, the spouse or common-law partner usually has the first right to apply. If there is no spouse or common-law partner, a close adult relative can apply: a child, parent, grandchild, sibling, or nephew or niece.

The court's power is wider than that guidance suggests. Under the Estates Act, the court may grant administration to the married spouse, to the person the deceased was living with in a conjugal relationship outside marriage immediately before death, to the next of kin, or to both, as in its discretion seems best. In other words, the usual order is a starting point, and the court has the final say.

When the court can choose someone else

There are several situations where the person who would normally apply is not the one appointed.

• If those entitled to apply, or a majority of those resident in Ontario, ask for someone else to be appointed, the court may appoint that other person.
• Where there is insolvency or other special circumstances, the court does not have to appoint the person otherwise entitled. It may appoint whoever it thinks fit, on security it directs.
• Section 5 of the Estates Act says letters of administration shall not be granted to a person not residing in Ontario, and this does not apply to resealing letters under s. 52. The bond rules also address applicants who do not live in Ontario, another province or territory, or a Commonwealth country. How these fit together for a particular applicant depends on the facts.

If you live outside Ontario, or if the family is not in agreement, it is worth speaking with a lawyer before filing, because these points can change who is able to act.

Consents and the bond

Where a beneficiary agrees to the application, their consent goes on Form 74G, Part B. Getting these consents early can help avoid disputes later.

A bond is required when the deceased died without a will, when the applicant was not named as estate trustee, or when the applicant does not live in Ontario, another province or territory, or a Commonwealth country. The bond is generally double the value of the estate unless a judge orders otherwise. A judge may at any time, in special circumstances, reduce the bond or dispense with it.

Because there is no will, most administrators will face the bond requirement, so it is wise to plan for it from the start.

Administering is not the same as inheriting

The person who handles the estate is not automatically the person who receives it. A common-law spouse does not inherit under the Succession Law Reform Act's intestacy rules. A common-law partner can still be appointed to administer the estate.

Married spouses have their own exception. A spouse's intestacy entitlements do not apply if the spouses were separated when the person died.

A common-law partner who was supported by the deceased may have another route. The court can order support from the estate where the deceased did not make adequate provision for a dependant. The application must be made within six months after the grant of probate or administration. The court may allow an application later as to any part of the estate not yet distributed. Whether a particular person qualifies as a dependant depends on the facts, so get advice promptly.

What to do after you are appointed

Once the court issues the certificate, the work begins. The estate representative must file an Estate Information Return with the Ministry of Finance within 180 calendar days after the estate certificate is issued, even if the estate is worth $0. If you later learn the return is wrong or incomplete, you must file an amended return within 60 days of finding out.

Taking this seriously matters. Failing to file the return, or making a false or misleading statement in it, is an offence. There is a due-diligence exception to the offence of making a false or misleading statement.

• Diarize the 180-day deadline for the Estate Information Return as soon as the certificate is issued.
• Keep records of every asset, debt and payment so the return and any later accounts are accurate.
• Remember the deceased's final income tax return. It is due April 30 of the following year for a death between January 1 and October 31, or 6 months after the death for a death between November 1 and December 31. If the deceased, or a cohabiting spouse or common-law partner, was carrying on a business, it is due June 15 of the following year (or 6 months after a death between December 16 and 31), though any balance owing is still due by the regular date.
• Before distributing anything, consider a CRA clearance certificate, requested on Form TX19, because a representative who distributes without one while tax is owing is personally liable for the unpaid amounts, up to the value of the assets distributed.
• Speak with a lawyer if relatives disagree, or if debts may exceed the estate's assets.

Frequently asked questions