Probate Without A Will
Some people die without a Will. This is also known as dying intestate. When a person dies without a Will, there are rules for how their estate gets distributed and who can apply to be the estate’s trustee (or executor). These rules are different across the provinces, so it’s important to understand the relevant laws in the province you live in and how they may affect you.
Unfortunately, probate without a Will is typically more difficult than probate with a Will. Here, we explain why probate is needed when your loved one dies intestate, who can apply to be the estate’s trustee, what you need to prepare an estate for probate, and what to do after you’ve finished the probate process.
What is probate?
Probate is the legal procedure through which the court:
Formally approves of the Will as the deceased’s last valid Will (if there is one); and
Appoints the person who will have the authority to act as the estate’s executor (or trustee).
In Ontario, a person going through probate is actually applying for a Certificate of Appointment of Estate Trustee. Other provinces have different names for that certificate, including Letters Probate or Letters of Administration.
The person who wishes to act as the estate trustee must apply to the court in certain circumstances to have the court validate the Will–if there is a Will–and appoint them as estate trustee. In cases where more than one person applies for the certificate, or where there is contention about who should be the trustee, the court makes the final decision.
Is probate always required?
Probate is not always required, but many estates need to go through the process. It is generally necessary when there is no Will or if there is a Will but the deceased did not name a trustee. It is also needed if the deceased had assets that do not pass to another person through the right of survivorship. If there are disputes about who should be the executor or about an estate’s distribution, probate is required. Finally, some agencies and financial institutions need probate to transfer ownership of assets to the estate trustee.
Probate is almost always needed if the deceased did not have a valid Will.
Why do I need probate when there’s no Will?
When there’s no legal Will, the deceased hasn’t set out their wishes for who they trust to distribute or manage their estate. This means the court has to authorize someone to carry out those duties on behalf of the person who died.
This is an important step because without that authorization, institutions where the deceased held assets might not be able to transfer those assets for estate management. For example, a bank may not be able to transfer the deceased’s bank accounts to you so you can use the funds to either pay off the estate’s debts or distribute the funds to beneficiaries.
That’s because, without the certificate of probate, the bank has no evidence that you’re legally allowed to access those assets.
Who can apply to be a trustee when there’s no Will?
When someone dies intestate, the person who will become the estate trustee is determined by their relationship to the deceased. This begins with the deceased’s spouse (including common-law spouse), then children, then next of kin in decreasing order.
If the person who applies to be named trustee has a lower right to that role than another person, the higher-ranking person must renounce their right to apply for the certificate. For example, if the deceased’s daughter wants to apply for the certificate but the deceased had a surviving spouse, the spouse must renounce their right to apply.
Provinces may have rules about the applicant’s residency. If the deceased lived in Ontario, for example, the trustee must also be an Ontario resident. So the first person eligible to be the deceased’s estate trustee is the closest living relative who resides in Ontario.
Looking for a Will
If the deceased hasn’t said specifically that they never wrote a Will, you may have to do some searching to find out if a valid Will exists. Check if there are any safes or safe-deposit boxes where the Will might be stored. If the deceased had a lawyer, ask the lawyer if they know of any valid Will.
You should also ask other trusted advisors and family members if they know of any legal Wills.
You cannot simply go into court and state that there is no legal Will. The court will require you to show that you’ve given reasonable time and energy to finding a Will and ensuring none exists.
If you are having difficulty finding a Will, you may consider speaking with an estate lawyer for legal advice on steps to take to find a Will and what evidence you need to prove you’ve conducted a thorough search.
Preparing for probate when there is no Will
Once you’ve determined there is no Will you must provide a notice to all surviving beneficiaries stating you are applying to the court for the Certificate of Appointment of Trustee Without a Will. You must then obtain signed consent forms from beneficiaries who have a majority interest in the estate assets, giving you their consent to be appointed trustee.
In Ontario, if there are beneficiaries who are under the age of 18, you must provide notice to their parent or guardian and The Children’s Lawyer, which is an independent law office in the Family Justice Services Division of the Ministry of the Attorney General.
You must also post bond equal to double the estate’s value. You may request the court waive that bond, but the court has the discretion not to do so.
Documents required for probate when there is no Will
When you apply for an appointment as trustee without a Will, you need to provide the following documents:
The properly filled out application, with all required documentation (such as consent forms and renunciations)
The affidavit of service on the beneficiaries
The administration bond (or the motion to waive the bond)
Payment of the Estate Administration Tax
The draft of the Certificate of Appointment of Estate Trustee Without a Will
What assets are subject to probate?
In Ontario, the assets subject to probate are:
Real estate in Ontario
Vehicles
Bank accounts that do not pass through the right of survivorship
Investments, TFSAs, RRSPs, RRIFs that do not pass to a beneficiary
Insurance
Business property
Business interests
Do I have to pay an Estate Administration Tax?
You may be required to pay the tax when you file for probate. The tax is based on the value of the estate–including all assets and property–above $50,000. If the estate is worth less than $50,000, no tax is charged. If the value of the estate that will go through probate is worth more than $50,000, the tax is charged on the amount above $50,000.
If you cannot afford to pay the tax, you can file a motion to delay payment until you have access to the estate’s assets.
Even if the estate’s value is worth less than $50,000, you are still required to submit a document estimating the estate’s worth.
What to do after probate is approved
If you receive the Certificate of Appointment of Estate Trustee Without a Will, the court has appointed you to execute the estate. You are now responsible for paying any debts the estate owes, closing accounts, filing income taxes, and distributing the estate’s assets. The balance of the estate left over after all debts have been paid is the amount available for distribution.
Each province has rules for how an estate without a Will should be distributed, typically based on the deceased’s surviving family relationships.
How assets are distributed in Ontario when someone dies without a Will
In Ontario, an estate is divided according to Ontario’s Succession Law Reform Act. Typically, unless there is someone financially dependent on the deceased who makes a claim to the estate, the first $350,000 of the estate goes to the spouse. Anything over that $350,000 is shared between the spouse and descendants.
If there is no spouse, the deceased’s children inherit the estate in equal shares. If there is no spouse and no children or grandchildren, the deceased’s parents inherit the estate. After that, the estate goes to the deceased’s siblings and then nieces or nephews.
Without a Will, the estate can only go to blood relatives or those who are legally adopted. Close friends and people who feel like family are not entitled to any inheritance that isn’t left to them in a Will.
Other provinces have different rules for how estates must be distributed when the deceased dies intestate. These varying rules include the amount of money going to surviving family members and even whether a common-law spouse is entitled to any assets.
Final thought
Estate administration when there is no Will can be complex, and it can feel overwhelming to execute an estate following the death of a loved one who died intestate. Consider working with an attorney or obtaining legal advice to ensure you’ve met all the requirements of applying for probate and managing the estate.
Your estate is made up of any assets that you owned at the time of your death. A valid Will can help to ensure that your estate is distributed according to your wishes and priorities. If you don’t have a Will, consider using Epilogue’s easy-to-use platform, which enables you to set out your wishes for your estate in a legal Will. The process can be done in as little as 20 minutes.
