How Do You Handle An Ontario Estate If There Is No Will?
The simple answer is that you need court authority to handle this estate. Without a will that names an executor, no one can control the estate. You must wait until a court appoints an estate trustee without a will. Here are some steps to save you time and aggravation.
Can’t find a will?
Then you need to apply to court to obtain your estate “certificate of appointment”. This court document confirms who controls the estate. Courts appoint estate trustees without wills to handle intestate estates, where there is no will. If you are appointed, you become an “estate trustee without a will”.
Everyone who has an interest in the estate is allowed to participate. They must first be identified and receive notice. It can take months to organize court dates if not everyone agrees to your appointment. That thought should make you go out and hire a lawyer. Your family needs you to sign your will and name your executor.
Here are some tips to help if there is no will:
1. Consult with An Estate Lawyer
Handling estates without wills can involve a mess of competing legal claims. Minors, stepchildren, ex-spouses, married spouses and common law spouses all have legal rights that must be addressed.
The sooner you obtain proper legal advice about your legal options, the better. Save time by consulting an estate lawyer about the conflicts that must be addressed.
I am often retained by persons who are confused by the process. They may have spent six months or more going around in circles. This is not something you can figure out yourself. You need advice about who has priority to apply for the court appointment.
Most financial institutions will refuse to release private information to you. It is difficult to obtain accurate information about the value of an estate. This is important to calculate the Estate Administration Tax. This provincial estate or probate tax must be paid when filing your application for the estate certificate.
2. Prove There Is No Will
You need to satisfy the court that there is no will. That means making all reasonable searches for evidence of a will. You may need legal advice to confirm what searches are reasonable. A previous lawyer may need to be contacted and evidence collected that the deceased had not destroyed any wills in their possession.
In some cases, courts can accept photocopies of wills. This fact can change the court procedures that can be followed. In some cases, copies of wills can be accepted by courts and treated like the original. This will usually require anyone with an interest in the estate to agree.
3. Confirm You Can Apply to Become Estate Trustee without A Will
You need to have a financial interest in the estate to consider being involved. You can have an interest if you are named in a prior will or are next of kin.
In Ontario, if there is no will, only Ontario residents can be appointed as estate trustee without a will. There are, however, rules that establish who has priority to apply to courts to handle an estate.
If you have claims against the estate for money, support or property, you may be disqualified. You can have a conflict that prevents courts from appointing you as estate trustee without a will.
4. Confirm Who Shares Intestate Estates
If a person dies without a valid will, Ontario law declares them intestate. Ontario law distributes an intestate estate according to its provincial rules. These rules are not flexible. Claims by financially dependent persons including minors, married spouses or common law partners can trump the usual distribution rules.
There are laws to determine who shares in the intestate estate. You will need specific legal advice to determine who shares and who is entitled to apply. Legal proceedings can establish claims that supersede the distribution rules.
I will cover the intestate distribution rules in my next post.Posted By: Ed Olkovich In: Estates, Wills On: February 27th, 2019