How to Prepare an Application for a Certificate of Appointment of Estate Trustee without a Will

Updated November 2013
by Ian Hull - Hull and Hull LLP

This How-To Brief outlines the steps to take when preparing an application for a certificate of appointment of estate trustee without a will.

1Gather what you will need for the application

  • A list of all of the deceased's assets with respective values
  • The following forms under the Rules of Civil Procedure:
    • Form 74.14, Application for Certificate of Appointment of Estate Trustee without a Will (Individual Applicant)
    • Form 74.15, Application for Certificate of Appointment of Estate Trustee without a Will (Corporate Applicant)
    • Form 74.16, Affidavit of Service of Notice
    • Form 74.17, Notice of an Application for a Certificate of Appointment of Estate Trustee without a Will
    • Form 74.18, Renunciation of Prior Right to a Certificate of Appointment of Estate Trustee without a Will (if applicable)
    • Form 74.19, Consent to Applicant's Appointment as Estate Trustee without a Will (if applicable)
    • Form 74.20, Certificate of Appointment of Estate Trustee without a Will
    • Form 74.32, Bond - Insurance or Guarantee Company (if applicable)
    • Form 74.33, Bond - Personal Sureties (if applicable)
    • Backpage
  • (See the link to the Rules of Civil Procedure Forms and sample Form 74.14, Application for Certificate of Appointment of Estate Trustee without a Will (Individual Applicant) in the Resources section of this How-To Brief.)
  • The following legislation:
    • Estates Act
    • Estates Administration Act
    • Estate Administration Tax Act, 1998
    • Crown Administration of Estates Act
    • Succession Law Reform Act
    • Rules of Civil Procedure, in particular, rr. 74.05 and 74.11

2Search for the will to ensure that one does not exist

  • The applicant must swear an affidavit that he or she has made a careful search and inquiry for a will and he or she believes that the deceased did not leave a will.
  • The applicant should speak with the deceased's next of kin and should search the deceased's safety deposit box or any other location where the deceased stored or may have stored important documents.
  • If the deceased had dealings with a particular lawyer, firm or trust company, the applicant should speak with them.
  • If a will is still not found, the lawyer, on behalf of the applicant, may wish to place an advertisement in the Ontario Reports and local newspapers asking for anyone with knowledge of the will.
  • Prior to issuing a certificate of appointment of an estate trustee without a will, the court must receive from the Estate Registrar a certificate that no will or codicil has been deposited in the Superior Court of Justice. See r. 74.12(1)(d).

3Determine who has the right to apply for the certificate of appointment of estate trustee without a will

  • The applicant must reside in Ontario.
  • A certificate of appointment will not be issued to a non-resident.
  • The order of preference for persons to apply to be appointed as the estate trustee where there is no will is set out in s. 29 of the Estates Act.
  • The legal status of individuals born within marriage or outside of marriage is identical. At present, the order is as follows:
    1. married spouse of the deceased or a person living in a conjugal relationship with the deceased immediately before death
    2. children of the deceased
    3. grandchildren of the deceased if no child is living
    4. great-grandchildren of the deceased if no child or grandchild is living, and so on if there is a lineal descent (descendants are preferred over ascendants even when the latter are closer in relationship)
    5. the father or mother of the deceased who leaves no issue
    6. the brothers or sisters of the deceased who dies without issue or parents
    7. the grandparent(s) of the deceased who dies without issue, parents or siblings
    8. the uncles, aunts, nephews, nieces and great-grandparents of the deceased who dies without issue, parents or siblings
    9. collateral relatives of more remote degrees, those of equal degree having an equal right
    10. where there are no next of kin in Ontario, the Public Guardian and Trustee.
  • An individual with a prior right to apply as against the applicant must renounce (Form 74.18) before the court will grant the certificate to the applicant.
  • If there are several persons standing in the same degree of kinship, the court will typically act in its discretion and appoint one or more of those persons based on the court's view of the interests of the estate.
  • The persons entitled to apply for the certificate may consent to the appointment of another person or a trust company (Form 74.19).
  • The certificate may be issued to a creditor of the deceased where there is no next of kin in Ontario willing or able to make the application. This would permit the creditor to collect the deceased's debts but obligates the creditor to administer the estate.

4Prepare the necessary documents to complete the application

  • Complete the following documents:
    • Form 74.14, Application for Certificate of Appointment of Estate Trustee without a Will (Individual Applicant)
    • Form 74.17, Notice of an Application for a Certificate of Appointment of Estate Trustee without a Will
    • Form 74.19, Consent to Applicant's Appointment as Estate Trustee without a Will (if applicable)
    • Form 74.20, Certificate of Appointment of Estate Trustee without a Will
  • The application contains the following information:
    • name of the deceased
    • last address of the deceased at death
    • last occupation of the deceased
    • date and place of death
    • marital status at death, including common-law relationships
    • names, addresses, relationship and age if under 18 of all persons entitled to share in the estate
    • value of the assets of the estate, including personal property worldwide and real property in Ontario (net of encumbrances)
    • name and occupation of the applicant
    • relationship of the applicant to the deceased
    • grounds for making the application
  • The applicant must swear, by affidavit, that the contents of the application are true, a careful search for a will has been conducted, he or she will carefully administer the estate and render complete accounts of administration and consent from all persons who together have a majority interest in the value of the assets has been obtained.
  • The consents must be attached to the affidavit.

5Serve the appropriate parties with the appropriate documents

  • Notice of the application must be served on all persons entitled to share in the distribution of the estate by regular letter mail to each person's last known address.
  • An affidavit of service of the notice must be filed in court with the application.

Serving minors

  • Notice to minors shall be served on a parent or guardian and must be served on the Children's Lawyer. See r. 74.05(3).
  • Notice to a minor does not need to be served on the Office of the Public Guardian and Trustee.

Serving mentally incompetent beneficiaries

  • Notice to a mentally incompetent beneficiary is served on the appropriate guardian, attorney or Public Guardian and Trustee. Review r. 74.05(4).

6Calculate the estate administration tax (formerly known as probate fees)

  • Estate administration tax is paid to the Minister of Finance.
  • The fees are based on the value of the estate and are calculated in accordance with s. 2(6) of the Estate Administration Tax Act, 1998. Note: amendments to the Estate Administration Tax Act 1998, received Royal Assent on May 12, 2011. There is no set date yet, as to when these amendments will come into force. Before calculating estate administration tax, applicants should ensure they are relying on the most up-to-date legislation.
  • The fees are calculated based on the value of the deceased's assets in his or her name alone and does not include assets that pass outside of the estate or outside of probate.

7Determine if an administration bond is necessary

  • In most cases of intestacy, it is necessary for the estate trustee to post a bond during the administration of the estate as protection to the beneficiaries and creditors of the estate. However, if the spouse is the sole beneficiary, the total value of the estate is less than the spouse's preferential share and an affidavit of debts is filed with the court, it is not necessary for the estate trustee to post a bond.
  • If the estate trustee is a government agency or a trust company, there is no need for a bond to be posted.
  • Review r. 74.11 to determine the particulars for the bond.
  • Form 74.32 is the appropriate form of bond from an insurance company, and Form 74.33 is the appropriate form of bond from one or more personal sureties.
  • Subrule 74.11(1) outlines the procedure for the estate trustee to apply to court to request a waiver or reduction of the bond.
  • The estate trustee must file an affidavit setting out the assets and the debts of the estate, including a statement of whether the debts have already been paid or they can be paid out of the assets of the estate and setting out the circumstances of the case that would justify dispensing with the bond.
  • The court will consider the size of the estate, the beneficiaries, the debts, the relationship of the estate trustee and the willingness of the beneficiaries to consent to the waiver or reduction of the bond.
  • The consent to the waiver of the bond is contained within the consent to the appointment of the estate trustee.
  • When the administration of the estate has been completed, the estate trustee can apply to court for a release of the bond.
  • The estate trustee must file an affidavit stating the administration of the estate has been completed, providing proof that creditors, if any, have been satisfied and requesting the release of the bond.
  • Consents from the beneficiaries stating that the estate has been administered to their satisfaction and a draft order directing the return of the administration bond must also be filed.

8File the necessary documents with the Estate Registrar of the Ontario Superior Court of Justice

  • The following documents must be filed with the court in the county where the deceased had his or her permanent residence at death:
    • Form 74.14 or Form 74.15, Application for Certificate of Appointment of Estate Trustee without A Will
    • Form 74.43, Affidavit Verifying Estate Accounts
    • Form 74.18, Renunciations (if any)
    • Form 74.19, Consent(s) to Applicant’s Appointment as Estate Trustee without a Will (if necessary)
    • Form 74.16, Affidavit of Service of the Notice of Application
    • security bond or consents to waive the bond (in Form 74.19) and an affidavit that the debts have been paid and a draft order dispensing with or reducing the bond
    • probate fees, payable to the Minister of Finance.
  • If the deceased lives outside of Ontario but owns property in Ontario, the application should be filed in Ontario and a separate application filed in every other jurisdiction where the deceased's property is located.
  • If the material filed with the application is complete, the court registrar may issue the certificate of appointment. However, if the application material is not complete, the application will be referred by the registrar to a judge for a determination.

Glossary

  • Administration, letters of: Formerly the term for a grant from the court to the personal representative of an intestate person. Now referred to as a "certificate of appointment of estate trustee without a will."
  • Beneficiary/ies:
    • Person(s) entitled to benefit under the terms of a trust or will.
    • Person(s) or association(s) named as the recipient(s) of the proceeds of a life insurance policy or a plan or fund (e.g., RRSP, RIF, LIF, pension or annuity.). In this context, the estate of a deceased may also be a beneficiary.
  • Estate trustee: Pursuant to RR. 74–75 of the Rules of Civil Procedure, this term means an executor, administrator or administrator with will annexed. "Estate trustee with a will" is an executor with will annexed. "Estate trustee without a will" means an administrator.
  • Probate (or letters probate): Formally the term for the procedure by which a will is accepted as valid. Letters probate of a will certify that the will was "proved" and the administration of the estate given to the executor by the Ontario Superior Court of Justice. This is now referred to as a "certificate of appointment of estate trustee with a will".
  • Will: A testamentary instrument made in writing. The Succession Law Reform Act sets out the requirements for making different types of wills, including holograph wills, military wills, wills by minors, and international wills.

Resources

Statutes and Rules