If you've been asked to administer an estate where the deceased died without a valid will, you face a more complicated process than handling an estate with a will. This guide explains what you need to know. We can't give any legal advice without knowing the specific facts of your case. This guide is designed to set out common issues in estate administration but it is not a substitute for legal advice. Call us or reach out directly if you would like advice about your particular situation.
While intestacy rules try to approximate what most people would want, they create numerous problems:
1. Unintended Beneficiaries
Intestacy might give assets to:
2. Excluded Intended Beneficiaries
Intestacy provides nothing to:
3. Administrative Complications
Estates without wills face extra hurdles:
4. Minor Children Complications
If beneficiaries include minor children:
5. Tax Inefficiency
Intestacy provides no opportunity for:
6. No Executor Choice
You cannot choose who administers the estate:
To administer an intestate estate, someone must obtain a Certificate of Appointment of Estate Trustee without a Will (formerly called "Letters of Administration").
Who Can Apply:
Priority order:
Residency Requirement:
Only Ontario residents can be appointed as estate trustees without a will. If the closest eligible relative lives outside Ontario, they must either:
If Multiple Potential Applicants:
When several next-of-kin have equal entitlement (siblings, for example):
"Majority in interest" means beneficiaries who together will receive more than 50% of the estate value (not just 50% of the number of beneficiaries).
Example: Deceased leaves three children, one of whom predeceased leaving four grandchildren. The estate is divided into three shares - one share to each surviving child (33.3% each) and the four grandchildren split the third share (8.3% each).
To establish majority in interest for one child to be appointed alone:
Unlike estates with wills, intestate estates almost always require an administration bond unless waived:
What is an Administration Bond?
This is insurance that protects beneficiaries from:
Cost:
Typically 1-2% of the total estate value annually, though the premium can sometimes be paid as a one-time lump sum.
When Required:
A bond is mandatory unless:
Partial Bonds:
If some beneficiaries consent to waive the bond and others don't, a partial bond covers only the non-consenting beneficiaries' share.
Example: Three children entitled to equal shares. Two consent to waive the bond, one doesn't. The bond amount equals 1/3 of the estate value.
Practical Problem:
Bond premiums are expensive, and many estate trustees find they cannot obtain bonds at all (insurers may decline if the applicant has poor credit or other risk factors). This can make it impossible to administer the estate without obtaining waivers from all beneficiaries.
1. Application for Certificate of Appointment (Form 74.14 or 74.15)
This includes:
2. Proof of Death
If the death occurred outside Ontario, an official government-issued death certificate is required.
3. Renunciations
Every person with equal or better entitlement to be appointed must either:
4. Consents (Form 74.19)
If you're not the obvious first choice (e.g., you're one of several siblings), you need written consents from beneficiaries representing a majority interest in the estate.
The consent form includes:
5. Administration Bond or Waivers
Either:
6. Affidavit of Service
Proof that you provided notice of your application to all persons entitled to share in the estate.
7. Proof of Relationships
Documents proving the family relationships you're claiming:
8. Search Efforts
If you cannot locate all potential beneficiaries, an affidavit explaining your search efforts.
Estate Administration Tax applies identically whether there's a will or not:
Important Difference from Estates with Wills:
Unlike estates with wills, you cannot file your application based on an "estimated" value with an undertaking to pay more later. The application must state the actual value, and the full tax must be paid at the time of filing.
This is because the administration bond is calculated based on the estate value - if you underestimate the value, the bond would be insufficient.
Within 90 days of receiving your Certificate of Appointment, you must file an Estate Information Return with the Ministry of Finance detailing:
Penalties for Non-Compliance:
Failure to file, or filing false or misleading information, can result in:
Before distributing estate assets, you must:
1. Identify Known Creditors
Review the deceased's records for:
Pay these in full before making any distribution to beneficiaries.
2. Advertise for Unknown Creditors
Publish a notice (typically three times, once per week) in a local newspaper or through an online legal notice service like NoticeConnect.
The notice should:
After the deadline passes, you can distribute the estate. You're protected from liability to creditors who didn't come forward, except for creditors you actually knew about.
Calculate Shares:
Using the intestacy rules, determine each beneficiary's entitlement.
Pay in the Correct Order:
Obtain Releases:
Before making final distribution, obtain a signed release from each beneficiary acknowledging:
Prepare Estate Accounts:
Detailed records of:
Beneficiaries can request formal passing of accounts through the court if they're not satisfied with your administration.
Locating Unknown Heirs:
If the deceased had few close relatives, you may need to:
Disputes Among Beneficiaries:
Without a will expressing the deceased's intentions, family disputes are more common:
Minor Beneficiaries:
If beneficiaries under 18 are entitled to inherit:
Consider hiring a lawyer experienced in estate administration if:
Administering an estate without a will involves complex procedures, strict timelines, and significant personal liability risks for estate trustees.
At Sheard Law, we guide estate trustees through every step:
Call us at 416-860-9990 or contact us through our website to discuss your estate administration needs.
