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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 here.

Who Can be Appointed Estate Trustee?

Who can apply for appointment is fixed by statute – primarily the Estates Act:

  • The spouse (can be common law spouse), or
  • The next of kin of the deceased, in decreasing order of kinship.

If there is a person with a higher right to appointment than the actual applicant, the higher-ranking person must renounce their right to apply and this renunciation must be submitted with the application.

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.

Someone who lives outside Ontario cannot be appointed the estate trustee without a will. That is “cannot” as in no ifs, buts or maybes. The person appointed ‘estate trustee without a will’ must be someone who is resident in Ontario.

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.

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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