An application for a certificate of appointment of estate trustee without a will is an application made to the court to appoint one or more persons as estate trustees so that they have the authority to administer an estate. This application was formerly referred to as a probate application. The term "estate trustee" includes an executor.

When Required

Generally, where a person dies without a Will, an application for a certificate of appointment of estate trustee without a will is required in order to transfer assets. However, in some circumstances, assets can be transferred without the certificate, so it is advisable to first determine whether the certificate is required before making the application to the court.

Who is entitled to apply to be estate trustee?

Under ss. 29(1) of the Estates Act, the court determines who will be appointed as estate trustee from the following: (a) the deceased's spouse (including common law spouse); (b) the deceased's next of kin; or (c) the spouse and next of kin.

Who is entitled to apply to be estate trustee?

How is the estate distributed where there is no Will?

Where a person dies without a Will, their estate is distributed according to the Succession Law Reform Act. In general terms:

• If the deceased was married, their spouse in entitled to a preferential share of $200,000. The remaining estate is then divided between the spouse and children (1/2 each if there is one child, if there are two or more children, the spouse gets 1/3 and the balance is divided between the children).
• If the deceased was not married at the time of death, their children divide the estate.
• If the deceased died without a spouse and did not have any children, their estate is divided amongst their surviving next of kin in the following order: parents, siblings, nieces of nephews, closest blood relatives.

Note that, except where a surviving parents are entitled to the estate, where a person who would have been entitled to a share of the estate has predeceased the deceased, their share is divided between their issue. For example, if the deceased had two children, but one predeceased the deceased with two children of their own, the estate would be divided as follows: 1/2 to the surviving child and 1/4 to each surviving grandchild.

Estate Administration Tax

Where an application for a certificate of appointment of estate trustee without a will is made, estate administration tax of 1.5% of the value of the estate in excess of $50,000 is payable when the application is made. If the application is not made, the tax is not payable.

Administration Bond

Where a person dies without a Will, an administration bond is required except in specified circumstances. An administration bond can be expensive and difficult to obtain so in most cases the applicants will ask the court to issue an order that the administration bond be dispensed with.

Process

The process to make the application for a certificate of appointment of estate trustee without a will varies depending on the circumstances. In general terms, the following are the main steps:

1. The persons entitled to apply for the certificate agree upon who will act as estate trustee. If they cannot agree, the dispute can be resolved through the courts. Any persons who will not be applying renounce their right and consent to the appointment of the applicants and, if applicable, to dispensing with the administration bond.
2. A notice that the application will be made is served on the beneficiaries. Additional rules apply where the beneficiary is a minor, unborn person or in mentally incapable within the meaning of s. 6 of the Substitute Decisions Act, 1992 (Ontario).
3. The value of the estate is determined so the amount of estate administration tax which is payable can be calculated. If necessary, funds can typically be obtained from the deceased's bank in order to make this payment. If the value of the estate cannot be determined, the application can be made based on an estimate, as long as an undertaking to calculate and pay any additional tax is submitted with the application.
4. The application for the certificate of appointment of estate trustee without a will is prepared and sworn. Additional application documentation is prepared as well, including an affidavit of service of the notice, an affidavit in support of a request to dispense with the administration bond, etc.
5. The application is filed with the court, along with a death certificate and payment of estate administration tax.