Last Will and Testament
If you are looking to create your own Will, you can do so by using our online Will-O-Matic software! It creates a custom-tailored and affordable Will that is based on the laws of your province:
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 fourth 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.
What’s the Process for Issuing a Certificate of Estate Trustee without a Will?
Before the registrar can issue a Certificate, he or she MUST:
- Enter the application in the estate technology system;
- Ensure that the required documents (as discussed in my previous blog) are filed;
- Examine the application to ensure that all boxes are complete and the affidavit of the applicant has been completed and signed;
- Ensure that a bond for the full amount of the value of the estate is posted (or an affidavit in support of a request for an order to dispense with the bond, together with the draft order, is filed; or see if there is an exemption from posting a bond);
- Ensure that the amount of estate administration tax paid is correct;
Where the application is complete, the Registrar will submit the application for clearance to the Estate Registrar for Ontario to see if the following documents have already been filed with the courts: wills or codicils with a later date, request for notice of commencement of proceedings, notice of objection, application for certificate of estate trustee, etc. Where a search certificate returned form the Estate Registrar for Ontario states “clear”, then the Registrar will sign, seal and issue the Certificate of Appointment of Estate Trustee without a Will (with a backsheet). The Certificate is to be issued the SAME day the clear search certificate is received.
If the search certificate is not clear (e.g. there may be a Will deposited), then that certificate will be provided to the filer.
Now, there may be certain situations where additional procedures MUST be completed in order for the Registrar to issue the Certificate of Appointment of Estate Trustee without a Will:
- If the applicant is not the deceased’s next of kin, and there are no adult next-of-kind to nominate in Ontario, then the registrar must send Notice to Public Guardian and Trustee with a copy of the application attached, before the Certificate can be issued. The Public Guardian and Trustee can apply for appointment within 30 days of receiving that notice or send a letter consenting to the applicant’s appointment. The bottom line is that, in this situation, the application MUST be held until a response is received from the Public Guardian and Trustee. If the Public Guardian and Trustee consents to the applicant’s appointment, then the Certificate will be issued (barring no other problems). If the Public Guardian and Trustee opposes the applicant’s appointment and wants to be that Trustee itself, then the certificate will not be issued without a judge’s determination.
- If a minor is the sole next-of-kin entitled to apply, the guardian of the minor or some other person may apply to be appointed. The appointment is within the discretion of the court to give (so there may be limitations). Where there are no near relatives of the minor in Ontario willing and able to administer the estate, or to nominate another person in Ontario, then the Public Guardian and Trustee MUST apply.
- If any person entitled to a share in the estate could not be served with notice of the application, then the applicant must identify that person and explain why. The file will then be sent to a judge for determination by endorsement, concerning an order to dispense with compliance for service or for alternate service (or as otherwise ordered).
Overall, it’s worth mentioning that, where the registrar has any doubt about an application or if the application is incomplete, then a Certificate will not be issued. ONLY a judge may dispense with or waive compliance under the Rules of Civil Procedure. Where a registrar refers a matter to a judge, an endorsement by the judge on the back of the application ensures that it is kept secure in the file.