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Probate when there is no will

Probate without a Will is much harder than when there is a Will.  Learn more about why everyone needs a Will on our website on Wills & Estate Plans

Who Can be Appointed Estate Trustee?

The Courts have the power to control who is appointed the estate trustee in intestacies.  They are not obligated to appoint any one person.  Accordingly if  a particular individual is incapable or unsuitable or refusing to act, the Courts can appoint someone else.  Conceivably, therefore ‘anyone resident in Ontario’ can be appointed the estate trustee when there is no will.

However, there is a presumption as to entitlement, which in effect is ‘spouse, then next of kin’.  Note that here ‘spouse’ includes common law spouse, even though they have no right to inherit from an intestate estate.

Where the person highest in this order of entitlement applies (or provides renunciations from everyone above them), it is possible to have an application approved ‘over the counter’ by court registry staff without extensive involvement of a judge.  If the applicant is not on this list, or, if renunciations from anyone with a prior right to apply to the applicant are not provided, a formal application to a judge to approve the application will be required.

There is no fixed rule for choosing if two people of equal claim want to be appointed the estate trustee.  A Court must decide, upon application from the interested parties.  However, where there is a contest between beneficiaries who are in conflict, often the best path is to seek the appointment of an independent third party with no conflict of interest (such as a trust company).

The person appointed ‘estate trustee without a will’ must be someone who is resident in Ontario in all but a few rare case.   Appointment of someone who lives outside Ontario is only conceivable if the estate clearly has no debts, is very simple both as to assets (for instance one bank account) and beneficiaries (ideally, the applicant is the sole beneficiary) and the applicant must reside in Canada, in another province or territory.

The Application for Probate, No Will

Preparing the probate application for appointment of estate trustee when there is no will is often much more complex than when there is a will.  In particular, it usually takes much longer to secure the necessary consents.  The differences from an application with a will are discussed below.

Notice Requirement

The Applicant must notify all beneficiaries of the estate that he/she will apply for appointment as estate trustee without a will.

Consent Requirement

The applicant must secure original signed consents to their appointment from beneficiaries with a majority interest in the value of the estate assets.

Minors

If there are beneficiaries who are also minors (children under 18) the applicant must serve notice of the application on the parent or guardian of the minor and on the The Children’s Lawyer, an agency of the Province of Ontario. This is not optional, even if the spouse of the deceased and parent of the children is the proposed estate trustee.

Mentally incompetent beneficiaries

If any beneficiary is mentally incompetent, notice must be served on the appropriate guardian, attorney or The Public Guardian and Trustee.

Bonds – Orders to Dispense

The general rule is that the proposed estate trustee without a will must post a bond equal to double the value of the estate.  It is possible to get the Court to waive (dispense) with this bond, however this is on the discretion of the Court after review of a properly prepared application for this relief.  Please contact us for assistance.

The Application

The applicant for appointment as estate trustee without a will must complete and file with the appropriate Court registry:

  • the properly executed (sworn and notarized) application, together with all required evidence (including renunciations, if any, and consents),
  • the affidavit of service on the beneficiaries,
  • the administration bond or motion and affidavit for an order dispensing with a bond,
  • payment of the Estate Administration Tax, and
  • a draft Certificate of Appointment of Estate Trustee Without a Will.

 

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