How to Administer an Estate on Intestacy

Updated November 2103
by Ian Hull - Hull and Hull LLP

The term "estate trustee without a will" is referred to in this How-To Brief as "estate trustee."

The term "estate trustee without a will" is referred to in this How-To Brief as "estate trustee."

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1Gather what you will need

  • Certificate of appointment of estate trustee without a will
  • Funeral director's statement of death or provincial death certificate ("proof of death")
  • Statement of assets of the deceased
  • Birth certificate, marriage certificate and social insurance card of the deceased
  • Copies of all assets (deeds, mortgages, bank statements, GICs, insurance policies, etc.)
  • Confirmed names, addresses, dates of birth and social insurance numbers for all beneficiaries
  • The following legislation:
    • Trustee Act
    • Succession Law Reform Act
    • Estates Act
    • Estates Administration Act
    • Family Law Act
    • Rules of Civil Procedure

2Prepare the necessary documents to administer the assets

  • The lawyer will prepare notarial copies of the certificate of appointment of estate trustee without a will.
  • The lawyer will prepare notarial copies of the proof of death.
  • The lawyer will prepare notarial copies of the birth certificate, marriage certificate and social insurance card.
  • The estate trustee should open an estate bank account.
  • The lawyer may write to all holders of assets (banks, etc.) to determine what documentation is required in order to redeem, sell or transfer assets.
  • The lawyer may assist the estate trustee in closing out bank accounts held by the deceased by providing notarial copies of the certificate of appointment of estate trustee without a will and notarial copies of the proof of death, together with a letter of direction signed by the estate trustee to close out the accounts.
  • The lawyer may assist in filing the application for the Canada Pension Plan death benefit if the deceased was a contributor.
  • The lawyer may assist in filing claim forms for life insurance proceeds or RRSPs/RRIFs payable to the estate.
  • The lawyer will prepare the necessary real estate documents to transfer the real estate to the estate trustee in order that the real estate can be sold or transferred to the beneficiary.
  • The lawyer will prepare documents for transfer and/or redemption of assets (e.g., declaration of transmission and letters of direction).

3Collect assets and pay liabilities

  • As cheques are received from the redemption or sale of assets, the lawyer or the estate trustee will arrange to deposit them to the estate bank account.
  • The lawyer may assist the estate trustee in verifying the amount of liabilities or claims against the estate.
  • The lawyer or the estate trustee will arrange to file the final tax return and trust and information return (T3) for the deceased and any other outstanding tax returns.
  • The lawyer may assist the estate trustee in obtaining the tax clearance certificate from the Canada Revenue Agency.
  • The estate trustee will issue cheques to pay the liabilities of the deceased and the estate.

4Advertise for creditors

  • The lawyer may assist the estate trustee in posting a formal notice in the newspaper. The generally accepted practice in Ontario is to insert the notice three times in a newspaper in the area where the deceased resided or carried on business. If an estate trustee fails to give notice of the death and the distribution of the estate, the estate trustee could be held personally liable for any claim of a creditor of the estate.

5Assist in preparing estate accounts

  • The lawyer may assist in preparing an accounting summarizing the assets at the time of death, all receipts and disbursements, and any compensation being claimed. The estate trustee has an obligation to the beneficiaries to "keep accurate records" of the assets and transactions in the estate pursuant to r. 74.17(1) of the Rules of Civil Procedure.

6Prepare releases for beneficiaries

  • Once the administration has been completed, the estate trustee will want to obtain a release from the beneficiaries releasing the estate trustee from liability in connection with the administration of the estate. The release should contain an accounting so that the beneficiaries of the residue can see the receipts and disbursements made by the estate trustee. The lawyer may prepare the release and distribute same to the beneficiaries for execution. The beneficiaries will sign the release if they are in agreement.

7If necessary, prepare a formal passing of accounts

  • If releases are not obtained from the beneficiaries, or where a beneficiary is a minor or an incapable person, it is necessary to formally pass the accounts of the estate. The form of the estate accounts required for a court passing can be found at r. 74.17 of the Rules of Civil Procedure.
  • The lawyer will prepare the following documents:
    • Form 74.44, Notice of Application to Pass Accounts
    • Form 74.43, Affidavit Verifying Estate Accounts
    • Record book containing Forms 74.43–74.44 together with a copy of the certificate of appointment of estate trustee without a will, a copy of any judgments on previous passings, if applicable, and the applicable court fee
  • (See the link to the Rules of Civil Procedure Forms in the Resources section of this How-To Brief.)
  • File the record to obtain a court date. Service of the record pursuant to the Rules takes place.

8Pay money into court if there are minor beneficiaries

  • If there are minor beneficiaries, the estate trustee has no power to hold funds in trust. The lawyer will prepare the necessary documentation pursuant to ss. 36(6)–(9) of the Trustee Act to pay shares belonging to minors to the Accountant of the Superior Court of Justice.

9Arrange for cancellation of the administration bond

  • If an administration bond was required to obtain the certificate of appointment of estate trustee without a will, the insurance company who provided the administration bond will require the return of the bond in order to cancel the premiums. In order to have the bond returned by the court, it is necessary to obtain a court order.
    • The lawyer will prepare the required court documents and file them with the court. These will include a supporting affidavit to be executed by the estate trustee containing the particulars of the court appointment and confirmation that all debts were paid and that the estate has been administered. Copies of the releases executed by the beneficiaries should be included as exhibits to the affidavit as well as copies of any orders on passings, and a draft order cancelling the bond and ordering its return is prepared. If a minor has a vested or contingent interest in the estate, a copy of the materials must be served on the Office of the Children's Lawyer. If a person found to be incapable has a vested or contingent interest in the estate, a copy of the materials must be served on the Public Guardian and Trustee.

10Distribute the estate

  • Pursuant to s. 26 of the Estates Administration Act, subject to s. 53 of the Trustee Act, no distribution is to take place on an intestacy for one year.
  • If no election was filed pursuant to the Family Law Act, no distribution is to take place without the consent of the spouse or direction of the court.
  • The estate trustee will prepare the distribution cheques, and the lawyer may assist in delivering them to the beneficiaries.
  • Transfer the assets in specie to the beneficiaries.

Statutes and rules