Applying For A Certificate Of Appointment Of Estate Trustee
For estate planning purposes, there are two ways a person may pass away: With a Will or without a Will.
If a person died with a Will, they likely appointed an executor/trustee in the document. One of the primary roles of the executor of the Will is to be the trustee of the estate. A trustee has a big job—they manage all property of the estate and distribute it to the deceased’s beneficiaries according to the contents of the Will.
For example, suppose the deceased’s estate includes an apartment unit that is earning rental income. In that case, the trustee(s) will be responsible for keeping it in good standing. They will also be responsible for distributing any rental income to the deceased’s beneficiaries.
As you can see, a trustee should be someone trustworthy, knowledgeable, and responsible. When you make a Will, you’re able to select who this person will be; however, if you die without a Will, someone has to apply for a certificate of appointment of estate trustee without a Will.
Before we get into what that process looks like, let’s cover some basics:
What is a trustee?
It’s essential to understand the role of a trustee to understand why one would appoint them.
A trustee is responsible for the administration of an individual’s estate.
Remember, the deceased is no longer alive and is unable to manage their own estate. They can’t drive to their rental property and collect rent, they can’t repair the property, and obviously, they can’t give their family any proceeds the property earns.
That is where the trustee comes in. They are the individual(s) appointed to look after the estate.
In law, the trustee becomes the legal owner of the deceased’s property, though this ownership is exclusively for the benefit of the beneficiaries. As such, while the trustee is legally the owner of the estate, they must act solely in the best interest of the estate’s beneficiaries and as if they were managing their own affairs.
To bring it back to our earlier example of the rental property, while the trustees may be allowed to sell the property, they cannot use the proceeds from the sale to buy themselves a new car. Proceeds from the sale are exclusively for the benefit of the beneficiaries.
What are the trustee’s responsibilities?
First and foremost, when a Will is written, the trustee must familiarize themselves with the terms of the Will. For example, they must understand:
- What property they are responsible for.
- Who the beneficiaries of the Will are.
- What the beneficiaries are entitled to and in what proportions. For example, the testator may wish to leave their business to their children, and the home to their spouse.
Ultimately, the trustees will be responsible for administering the affairs of the estate.
But what happens if an individual passes away without a Will?
With no Will, there is no appointed trustee. So, if there is no trustee, who is responsible for administering the affairs of the deceased?
Each Canadian province has its own rules that allow for the appointment of a trustee when no Will is present. For this to happen, someone has to apply for what’s known as a “certificate of appointment.”
What is a certificate of appointment without a Will (also known as a probate)?
When someone dies without a Will, certain individuals can apply for a certificate of appointment for a trustee. That is, apply to be certified as the estate’s trustee. This process is more commonly known as probate.
If approved, the court issues “a certificate of appointment of estate trustee,” a document confirming the estate’s trustee.
Who can apply for a certificate?
There are several restrictions for who can apply for a certificate of appointment of estate trustee. Intuitively, this makes sense, as the courts won’t allow just anyone to be certified for such a large and important role.
First off, you must be an Ontario resident to apply. Aside from that, the following people are granted trusteeship, in order of preference:
- A partner the deceased was legally married to or in a common-law relationship with immediately before death.
- The deceased’s closest living relative.
- A trust company the deceased had alone or with another person.
- As a last resort, the creditor of the deceased or the Public Trustee.
In Ontario, the courts have the authority to certify any person (even those not on the above list) where it is necessary and convenient to do so.
How to obtain a certificate of appointment without a Will in Ontario
In Ontario, the application is made to the Superior Court of Justice. The applicant must file the application in the office for the county or district where the deceased was living when they died.
If the deceased had no fixed home or resided outside of Ontario at the time of death, the applicant must file the application in the office for the county or district where they had property when they died.
In Ontario, the applicant has to submit several forms to the court. The forms can’t be filed electronically and must be printed and filed in hardcopy at the court office.
That said, supporting documents and responding documents may be filed electronically at the email address for their particular court location.
Here is a list of the forms you’ll need to complete and submit to file for a certificate of appointment of estate trustee:
- Notice of Application (Form 74.17) – the Notice of Application form is the first form filed. This form must be served to all those entitled to a share in the estate (heirs).
- Affidavit of Service of Notice (Form 74.16) – the form is only filed if anyone that was entitled to be served has not been served. If so, an explanation as to why a person has not been served must be indicated.
- Affidavit of Service (Form 74.16) shows that anyone interested in the estate received the Notice of Application and other required documents.
- Application (Form 74.14) explains why someone is entitled to apply for the certificate of appointment of estate trustee. It includes information about anyone who has an entitlement to a share of the estate. If the list consists of someone other than a spouse, child, parent, or sibling, the application should explain the relationship between this person and the deceased.
- Certificate of Appointment of Estate Trustee (Form 74.20) is the certificate that appoints the intended individual(s) as the estate trustee. If the application is successful, the court registrar will sign and seal this Certificate.
If you recall, that among those eligible to be certified as a trustee is the deceased’s closest living relatives. Provincially, there is a preferential ranking amongst relatives. For example, a child precedes the deceased’s nephews/nieces.
If circumstances arise where an individual lower on the priority list wishes to be appointed trustee, (for example, where a niece wishes to be appointed trustee rather than the deceased’s daughter,) Form 74.18 must be filed to override higher-ranking priorities.
Supporting documents include:
- A death certificate or a court order proving the deceased’s death
- A list of the estate’s assets and the values of each asset
What are the costs associated with obtaining a certificate of appointment?
Beyond the expense of soliciting legal advice (if one chooses to do so,) the application for a certificate of estate trustee includes an estate administration tax.
The tax is paid as a deposit when applying for an estate certificate from the Superior Court of Justice. Once the certificate is issued, that deposit becomes the estate administration tax.
Estate administration tax
Estate administration tax varies since it’s charged based on the value of the estate. The estate’s value is the value of all assets owned by the deceased at the time of death.
As of January 1, 2020, the Ontario government eliminated the estate administration tax for the first $50,000 of an estate.
- Real estate in Ontario
- Domestic and foreign bank accounts
- Investments, vehicles
- Property held by the deceased in another name
- All other property, wherever situated
- Goods, intangibles, business interests, and insurance, if proceeds are left to the estate
The following are not included when calculating the value of the estate and the applicable tax:
- Funeral expenses
- Lawyer’s fee
- Loans and interest payments
- Debt owed on a vehicle
- Credit card debts
- Real estate commissions
- Unregistered loans
- Line of credit
To calculate the amount of estate administration tax for a specific estate, use an estate administration tax calculator.
An application for a certificate of appointment of estate trustee without a Will is an essential and formal approval process. Without it, the estate lacks a trustee and may not be managed and administered in its best interest. The process involves filing necessary forms to the Superior Court of Justice and paying the estate administration tax.
For more information about applying for a certificate of estate trustee appointment in your province, visit: