Probate Without a Will in Ontario

Estate trustees can also use our Probate Document Checklist to begin gathering commonly requested information and documents before starting the application process. Learn how probate works when someone dies without a Will in Ontario, who may apply to administer the estate, and what additional documents and court requirements may be involved.

When a person dies without a valid Will, they are said to have died intestate. Because the deceased did not name an executor, an eligible person may need to apply to the Ontario Superior Court of Justice for authority to administer the estate.

The document issued by the Court is called a Certificate of Appointment of Estate Trustee without a Will. Once appointed, the estate trustee has legal authority to collect and manage estate assets, pay valid debts and expenses, address tax obligations, and distribute the remaining estate according to Ontario law.

Where the deceased left a valid Will, the application process is different. Learn more about probate with a Will in Ontario.

Learn more about who inherits when there is no Will in Ontario.

When there is no valid Will, there are no written instructions naming an executor or directing how the estate should be divided.

Instead, Ontario’s Succession Law Reform Act determines who may inherit the estate. The distribution is based on the deceased’s legally recognized family relationships and not simply on informal family arrangements or what relatives believe the deceased would have wanted.

Before any distribution is made, an estate trustee may need to be appointed to:

• identify and secure the deceased’s assets;
• communicate with banks and other institutions;
• determine and pay valid debts;
• deal with estate property;
• complete tax-related responsibilities; and
• distribute the remaining estate to the persons legally entitled to receive it.

Before applying for probate without a Will, reasonable steps should be taken to determine whether the deceased left a Will.

A careful search may include reviewing:

• the deceased’s personal papers and records;
• files stored at their home or office;
• safety deposit box records;
• electronic files and correspondence;
• information held by a previous lawyer or accountant; and
• information available from close family members or trusted advisers.

The probate application requires the applicant to confirm that reasonable efforts were made to search for a Will and that no Will was found. The steps taken should be documented in case further information is requested by the Court.

No family member automatically becomes the estate trustee simply because they arranged the funeral, cared for the deceased, are the oldest child, or are the closest relative.

The applicant must explain why they are legally entitled to apply. Ontario’s public probate guidance indicates that a spouse or common-law partner will often have the first opportunity to apply, followed by the deceased’s next of kin.

The person applying must explain why they are entitled to apply. In Ontario, where a person dies without a Will, a spouse or common-law partner will generally have priority to apply, followed by other eligible relatives depending on the circumstances and their relationship to the deceased.

The appropriate applicant depends on the deceased’s family situation, the persons entitled to share in the estate, and whether anyone with equal or prior entitlement is willing to act. If there is uncertainty about who should apply, or if the circumstances of the estate are more complex, additional documents, consents, or court involvement may be required.

A common-law partner may be entitled to apply to administer an estate even though common-law partners and legally married spouses are treated differently for inheritance purposes.

A common-law partner does not automatically inherit from an intestate estate under Ontario’s Succession Law Reform Act solely because of the common-law relationship. However, they may have other possible claims or entitlements depending on the circumstances.

The right to apply as estate trustee and the right to inherit are separate legal questions and should be considered independently.

The application generally requires detailed information about the deceased, their family relationships, the proposed estate trustee, the beneficiaries, and the estate assets.

The process may include:

1. Obtaining proof of death.
2. Completing and documenting a careful search for a Will.
3. Identifying the person or persons entitled to apply.
4. Identifying everyone who may be entitled to share in the estate.
5. Determining the deceased’s marital and family history.
6. Obtaining the estate asset information and date-of-death values required for the application.
7. Providing the required notice of the application.
8. Obtaining any required consents or renunciations.
9. Addressing whether an estate administration bond is required.
10. Preparing and filing the probate application and supporting documents.
11. Paying any applicable Estate Administration Tax.
12. Responding to questions or requests for additional information from the Court.
13. Obtaining the Certificate of Appointment of Estate Trustee without a Will.

The exact documents required will depend on the estate and the proposed applicant’s relationship to the deceased.

Estate trustees can also use our Probate Document Checklist to begin gathering commonly requested information and documents before starting the application process.

The proposed estate trustee must generally provide notice of the application to each person entitled to share in the estate.

The notice gives beneficiaries information about:

• the identity of the person applying;
• the estimated value of the estate;
• their possible interest in the estate; and
• the applicant’s intention to seek authority from the Court.

Proof that the required notice was properly provided must be included with the probate application.

Where more than one person may be entitled to apply, additional documents may be needed. 

A renunciation may be required from a person who is entitled in priority or equally entitled to apply but is not joining in the application.

The applicant may also need consents from beneficiaries who together hold a majority interest in the value of the estate. The appropriate consents depend on who is applying, their entitlement to apply, and whether any order concerning an administration bond is requested.

Obtaining signatures can take time, particularly where beneficiaries live in different locations or where the family structure is complicated.

Additional requirements apply where a beneficiary under 18 is entitled to share in the estate.

Notice of the probate application must generally be provided to:

• the minor beneficiary’s parent or guardian; and
• the Office of the Children’s Lawyer.

The Office of the Children’s Lawyer must be served even where the proposed estate trustee is also the minor’s parent.

The involvement of a minor may also affect whether an administration bond can be waived or reduced and how the minor’s inheritance may be held or paid.

Additional procedural requirements may also apply where an adult beneficiary may be incapable of managing their financial interests.

Depending on the circumstances, notice may need to be provided to:

• the beneficiary’s guardian of property;
• an attorney acting under a valid power of attorney for property; or
• the Office of the Public Guardian and Trustee where no authorized person is acting.

These situations should be reviewed carefully before the application is filed.

An administration bond is intended to protect the estate and its beneficiaries if the estate trustee does not properly perform their duties.

An application to become estate trustee without a Will may require an administration bond unless an exemption applies or the Court reduces or dispenses with the requirement.

• provide the required bond;
• rely on an available statutory exemption;
• request that the Court reduce the bond amount; or
• request that the Court dispense with the bond entirely.

Where a bond is required, the statutory starting amount is generally twice the value at which the deceased’s property has been sworn. However, exemptions and court discretion may apply.

Whether a bond may be reduced or waived can depend on factors such as:

• where the proposed estate trustee resides, including whether they reside in Ontario;
• the value and nature of the estate assets;
• whether the proposed estate trustee was legally married to the deceased;
• whether all affected adult beneficiaries consent;
• whether any beneficiary is under 18;
• whether an adult beneficiary may be incapable;
• whether the estate has outstanding debts or liabilities; and
• the overall circumstances of the estate.

The Court must approve any request to reduce or dispense with a bond.

The total timeline includes the time required to prepare the application and the Court’s processing time after filing.

Preparing an application without a Will may take longer where:

• the deceased’s family history must be investigated;
• beneficiaries or relatives are difficult to locate;
• it is unclear who should apply;
• renunciations or consents are required;
• estate assets are difficult to identify or value;
• minor or incapable beneficiaries are involved;
• the administration bond requirement must be addressed; or
• a court order is required.

Once filed, processing times vary depending on the courthouse, its workload, whether the documents are complete, and whether the Court requests corrections or additional evidence.

An exact timeline cannot be guaranteed. A complete and carefully prepared application can help reduce the risk of avoidable rejection or delay.

Receiving the Certificate gives the estate trustee authority to act, but it does not complete the administration of the estate.

The estate trustee may still need to:

• identify, secure, and insure estate assets;
• open an estate bank account;
• collect money owed to the deceased;
• close or transfer financial accounts;
• sell or transfer real estate;
• identify and pay valid debts and estate expenses;
• arrange for tax returns to be prepared;
• file the Estate Information Return with the Ontario Ministry of Finance within the applicable deadline, where required;
• maintain complete estate records and accounts;
• communicate with beneficiaries;
• consider obtaining a Canada Revenue Agency clearance certificate; and
• distribute the remaining estate according to Ontario’s intestacy laws.

Probate is only one part of administering an estate. Learn more about our estate administration services and the responsibilities that continue after the Certificate is issued.

Where an estate includes real property, additional legal work may be required to sell or transfer real estate.

The estate trustee cannot distribute the estate based solely on personal preference or an informal family understanding. The distribution must follow the applicable law unless a legally valid alternative arrangement is made with appropriate professional advice.

Estate trustees may also be entitled to compensation for their work. Learn more about executor compensation in Ontario.

The expenses may include:

• Estate Administration Tax;
• legal fees for preparing and filing the application;
• expenses involved in searching for a Will;
• fees for obtaining records or conducting searches;
• appraisal or valuation costs;
• administration bond premiums or surety-related expenses;
• accounting and tax-preparation costs; and
• other expenses arising from the circumstances of the estate.

There is no Ontario Estate Administration Tax on the first $50,000 of estate value. For any value above $50,000, the tax is $15 for every $1,000, or part of $1,000.

The estate assets and their date-of-death values should be carefully reviewed before the probate application is filed.

Appropriate probate and estate-administration expenses are generally payable from the estate, subject to the nature of the expense and the circumstances.

A modest estate does not automatically avoid probate. A bank, land registry office, purchaser, or other third party may still require formal proof of the estate trustee’s authority.

Where the total estate value is $150,000 or less, the estate may qualify for Ontario’s Small Estate Certificate process. Whether this process is appropriate depends on the assets and the requirements of the institutions holding them.

An individual is generally permitted to prepare and file their own probate application. However, an application without a Will can involve detailed questions about entitlement, family relationships, beneficiaries, consents, renunciations, bonds, asset values, and tax obligations.

Legal assistance may be particularly helpful where:

• the deceased had a spouse or common-law partner;
• the deceased was separated but not divorced;
• there are children from different relationships;
• a beneficiary is under 18;
• an adult beneficiary may be incapable;
• relatives or beneficiaries cannot be located;
• the proposed applicant does not have the first right to apply;
• the estate includes real estate or a business;
• the estate has significant debts;
• a bond may be required; or
• the appropriate distribution of the estate is unclear.

Court staff can provide administrative information but cannot give legal advice or advise an applicant how to complete the court documents.

Nobari Law Professional Corporation assists individuals applying to administer Ontario estates where the deceased did not leave a valid Will.

Our services may include:

• explaining who may be entitled to apply;
• reviewing the deceased’s family and marital circumstances;
• identifying the persons who may be entitled to inherit;
• determining which notices, consents, and renunciations may be required;
• reviewing the estate asset information and date-of-death values provided for the probate application;
• preparing and filing the probate application;
• preparing materials to request that an estate administration bond be reduced or dispensed with, where appropriate;
• responding to court questions or requests for additional information;
• assisting with estate property and related real estate matters;
• preparing beneficiary releases and receipts, where appropriate;
• providing legal guidance during the administration of the estate, where requested; and
• coordinating with accountants, appraisers, and other professionals where their assistance is required.
   

Every estate is different. Nobari Law Professional Corporation provides practical and personalized assistance based on the deceased’s assets, family circumstances, potential beneficiaries, and the responsibilities facing the proposed estate trustee.

Contact Nobari Law Professional Corporation to discuss your circumstances and learn how we may assist with a probate application without a Will or the administration of an Ontario estate.