How Do You Obtain Probate When There's No Will?

I’ve previously blogged about who’s entitled to be the estate trustee when there’s no will; however finding the appropriate candidate isn’t all that’s involved – the prospective estate trustee must be actually appointed by the court to obtain the necessary authority to administer the estate. 

This is not simply a procedural issue – where someone dies with a will naming an executor, that executor’s authority derives from the will itself (although most frequently, in order to gain control of estate assets, the named executor will require the court to grant a certificate of appointment).  However, where there’s no will, no one has the authority to administer the estate until probate has been granted by the court. 

The appointment necessary when an individual dies without a will is referred to as a “certificate of appointment of estate trustee without a will” and the procedure involved falls under rule 74.05 of the Rules of Civil Procedure.  

To begin with, the prospective estate trustee is required to file an application for a certificate of appointment.  In doing so, she is required to put on notice (by way of the required notice of application) the beneficiaries of the estate (if a beneficiary is a minor, The Children’s Lawyer must be put on notice; if a beneficiary is mentally incapable, The Public Guardian & Trustee must be put on notice). 

Additionally, the prospective estate trustee must file with the court a renunciation of anyone who is otherwise entitled to be appointed as estate trustee and who is not otherwise applying (s. 29 of the Estates Act specifies who that would be).  Consents by the beneficiaries who, together, have a majority interest in the estate are also required.

Finally, it should be noted that s. 35 of the Estates Act requires the prospective estate trustee to post a bond – unless he or she is the spouse of the deceased and the value of the estate does not exceed the preferential share prescribed by s. 45(6) of the Succession Law Reform Act (currently $200,000).