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Apr

12

Probate | Estate Administration | Wills and Estates (Part 3): Dying Without a Will

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date. Laws change often and without notice. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can also contact me directly.

This is the third of a series of MANY blog posts about Estate Administration in Ontario. Be sure to check them all out! Here, I’ll be talking about what happens if you die without a Will in Ontario. Basically, if you have a Will, you will appoint a person to be your Estate Trustee to follow your final instructions. If you don’t have a Will and you die (it’s said that you’ve died “intestate“), then someone must apply to the court to be your Estate Trustee. They will need to obtain what’s called a “Certificate of Appointment of Estate Trustee without a Will“. The Superior Court of Justice appoints an estate trustee without a will to give that person the authority to manage and distribute the estate of the deceased.

Who can apply?
A person applying for a Certificate of Appointment of Estate Trustee without a will must be a resident of Ontario (unless special circumstances exist and the Court order otherwise). There are a number of rules concerning who has PRIORITY to apply for and become the Estate Trustee. The person with the first priority is the spouse or the person with whom the deceased was living in a conjugal relationship outside marriage. The next of kind in an intestacy (called heirs-at-law) are next in priority according to the laws in the Succession Law Reform Act (section 44-49).

The usual preference goes as follows:

  1. Spouse or person with whom the deceased was living in a conjugal relationship outside marriage;
  2. Children;
  3. Grandchildren (if no child is living);
  4. Great grandchildren (if no child or grandchild is living);
  5. Other lineal descendants (e.g. great-great grandchildren);
  6. Father (if no children are living);
  7. Mother (if no children or father are living);
  8. Brothers, sisters (if no children or parents living);
  9. Grandparents (if no children, parents, or siblings are living);
  10. Uncles, aunts, nephews, nieces, and great-grandparents (if no children, parents, siblings or grand-parents are living);

Where there is more than one next-of-kin of hte same degree entitled to apply, either all may apply or one (or more) may apply with the consent of all others. The court is not required to appoint an estate trustee without a Will in the above order; indeed, it can appoint who it deems to be the MOST APPROPRIATE PERSON (section 29(1) of the Estates Act).

Next-of-kin with a prior right may renounce their right to apply. The nominee of a majority of the beneficiaries of equal standing may apply. What if the next of kin are not prepared to be appointed? Well, the court may appoint another person, such as a creditor of the deceased (or a nominee of those creditors): section 29(3) of the Estates Act.

Documents that must be filed
Section 74.05 of those Rules require that the following documents to be filed to obtain a Certificate of Appointment of Estate Trustee without a Will:

  1. Application for Certificate of Estate Trustee without a Will;
  2. Notice of an Application for a Certificate of Appointment of Estate Trustee Without a Will marked as an exhibit to the Affidavit of Service of Notice;
  3. Affidavit of Service of Notice stating that the notice of the application has been served on all persons entitled to share in the distribution of the estate, except the applicant, at their last known address by regular letter mail (note: there are additional requirements if the person with a financial interest in the estate is a minor or is mentally incapable);
  4. If any person entitled to be served with the notice of application has not been served, the name of the person must be shown in paragraph 3 of the Affidavit of Service and in paragraph 8 of the Notice and the applicant must state the reason in both forms;
  5. A bond may be dispensed with, reduced, or may not be required. A bond, by two personal sureties, or one personal surety where the estate value is $100,000 or less or from an insurer licensed under the Insurance Act write surety and fidelity insurance. If the applicant seeks an order to dispense with the requirement to post a bond, an affidavit in support of the request, together with consents from all beneficiaries included in Form 74.19 and a draft order to dispense with or reduce the bond. The applicant’s affidavit must state that all debts have been paid or list all the debts outstanding. This request is included with the application and requires a judge’s determination. No fee is payable;
  6. Applicable estate administration tax;
  7. Certificate of Appointment of Estate Trustee Without a Will with a backsheet;
  8. A renunciation (Form 74.18) from every person who is entitled in priority to be named as estate trustee and who has not joined in the application;
  9. A consent to the applicant’s appointment (Form 74.19) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
  10. Any other additional material which the court may direct (e.g. affidavit dispensing with bond, Draft Order Dispensing with bond, Draft Certificate, affidavits concerning value of estate, etc.).

If court staff have concerns about the application or accompanying materials, the application must be referred to a judge for direction. The judge may require further materials to be filed or steps taken by the personal representative in relation to the application. The Ministry strives to process certificates of appointment of estate trustee with or without a will within 15 days after the application and accompanying materials are complete and judicial direction, if required, has been obtained. If a Certificate of Appointment of Estate Trustee Without a Will is issued, it will be in Form 74.20. Be sure to consult a lawyer if you need one!

In the next blog, I’ll discuss the process for issuing a Certificate of Appointment of Estate Trustee Without a Will.

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.

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