Becoming an Estate Executor When There is No Will
Author: Kyle Muscat
The Basics of Preparing an Application for Certificate of Appointment of Estate Trustee
When becoming an executor of an estate without a Will, often times a bond will be required. Although this website typically focuses on estate administration bonds and the bond application process, this article will mainly focus on the initial application to court in order to be appointed as the estate trustee when there’s no Will. If a bond is in fact required as outlined in step 7, please skip to the following article for more information:
How to Easily Obtain an Estate Administration Bond in Ontario – FCA Surety Bonds
The following is a 9-step summary of the process of applying. Please note that we are not lawyers and this list is simply a summary of the process A law firm should absolutely be consulted prior to starting the application process.
Step 1 – Gathering Information Required to Make the Application. The following is a List of Documents and Information You will Need:
– List of the assets of the estate and liabilities of the estate along with their values. What are the debts of the deceased?
– Various forms which can be found in the Rules of Civil Procedure, particularly inform section 74. http://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/. Your lawyer will help you determine which forms are required.
Step 2 – Search for the Will to Make Sure There isn’t a Will in Circulation
Although some countries have a Wills registry similar to a land title registry, such a registry doesn’t exist in Canada. Effectively, someone could have had a Will prepared and not told anyone it exists. In order to ensure that no Will exists, the following are some steps to make that determination:
– Speak with the deceased next of kin or beneficiaries of the estate, search in places like the deceased safety deposit box, office, or any places where the Will may have been stored.
– Speak to any law firm that the deceased had dealings with.
– Place an advertisement in the Ontario Reports and local newspaper requesting that someone with knowledge of a Will come forward.
– The applicant to become an estate executor must swear an affidavit that a careful search has been conducted.
– Prior to a certificate of appointment being issued, the Estate Registrar will certify to the court that no Will has been deposited to the Superior Court of Justice
Step 3 – Determine Who can Legally Make the Application to Become the Estate Trustee. The Following are Some Requirements:
– The applicant must be an Ontario resident.
– There is an order of preference for persons to apply which is set out in the Estates Act.
– If there’s an individual who takes priority to the proposed executor, that individual must formally renounce their right to be executor.
– The persons who are entitled to apply, may also give their consent to an alternative appointment.
– The certificate can be issued to a creditor of the deceased where there is no next of kin willing or able to be executor. This allows the creditor to collect their debts while administering the estate.
Step 4 – Prepare the Documents Ultimately Required.
Now that more determinations have been made, you will complete the required documents as identified and requested by your lawyer. These documents must be accompanied by the applicant’s affidavit that the contents of the application are true, that a proper search for a Will has been made, that the applicant will carefully administer the estate and prepare proper accounts of administration, and that the appropriate consents have been obtained.
Step 5 – Serve the Required Documents to the Appropriate Parties.
A notice of the application must be served to all parties entitled to a portion of the estate. A corresponding affidavit that this service has taken place must be filed in court when making the application. Any notice to minors must be served to a parent or guardian and also to the Children’s Lawyer which is a law office within the Family Justices Services Division of the Ministry of the Attorney General. Any notice to a mentally incompetent person must be served to the appropriate guardian.
Step 6 – Calculate the Estate Administration Tax/Probate Fees
These fees are based on the value of the estate and are outlined in the Estate Administration Act, 1998.
Step 7 – Determine if an Estate Administration Bond is Needed
In some cases, an administration or estate bond is required in order to protect the beneficiaries and creditors of the estate against improper allocation of assets by the executor. We cover executor bonds extensively on our website. Please read the following article about estate administration bonds:
How to Easily Obtain an Estate Administration Bond in Ontario – FCA Surety Bonds
Step 8 – File all of the Required Documents with the Estate Registrar of the Ontario Superior Court of Justice
At this stage, all necessary documents need to be filed at the court in the county where the deceased had resided. If the deceased lived outside Ontario, the application needs to be filed in Ontario with a separate application filed in all other jurisdictions where the deceased had property.
Step 9 – Issuance of the Certificate of Appointment for Estate Trustee
At this stage, provided that the application is complete, the court registrar can issue the certificate of appointment. In cases where the application was incomplete, the registrar will refer the matter to a judge for a final determination.
References
Hull, Ian of Hull & Hull LLP. (November 2013). Retrieved from: https://lso.ca/lawyers/practice-supports-and-resources/practice-area/estates-and-trusts/how-to-prepare-an-application-for-a-certificate-of