Intestacy: Probate Without a Will

Intestacy Definition

Intestacy is when someone dies without a valid Will. In this case, there is no appointed executor, meaning in order to receive probate, you must apply to the court for a Certificate of Appointment of Estate Trustee without a Will so that you can administer the estate.

Applying for Probate without a Will

For the laws on intestacy regarding probate, there is little difference between testate probate (with a Will) and intestate probate (without a Will) in Ontario. 

Intestate probate is the process of applying for a Certificate of Appointment of Estate Trustee Without a Will from the Court, which:

• provides the authority of an executor to act on behalf of the estate; and
• confirms that no valid Will exists.

Ontario intestacy rules for receiving probate follow a similar legal process as testate probate. An intestate probate application typically involves completing a form, attaching several necessary documents, and dealing with the Estate Administration Tax.  The tax is $15 for every $1,000 of the value of the estate, though no tax is payable on the first $50,000 of an estate’s value.  A probate lawyer can apply to defer the tax until 6 months after probate is granted.

The executor is subject to duties to the estate and its beneficiaries, including loyalty and good faith. An estate trustee has wide discretion and may charge compensation for executor duties, but they can also be sued for the improper use of that discretion.

In many ways, intestate probate can be easier than testate probate. The Succession Law Reform Act instructs executors as to how distribute funds and executors do not have to interpret Wills, which can sometimes be vague or deficient.  Many executors administering problematic Wills would much rather there be no Will at all.  An executor should never agree to pay a percentage of the value of the estate to a lawyer for legal fees.  This practice is no longer allowed.  The law that “permitted a solicitor to charge for legal services to an executor based on percentages of the value of the estate, was abolished” according to Ontario Court Decisions.

Who can be the Executor on Intestacy?

In Ontario, the spouse or common law spouse of the deceased has priority to apply for probate, followed by the deceased’s next of kin.  Any capable adult resident in Ontario can apply for probate.

There is a general prohibition against non-residents of Ontario being appointed executor without the purchase of a bond (expensive insurance). The bond can be dispensed with by the Court. If a non-resident of Canada is appointed executor, the estate may face significant adverse tax consequences. It is generally not a practical solution for non-residents of Ontario to be appointed executor on an intestacy. It is best to find a cooperative Ontario resident to apply to be executor, even if a non-resident beneficiary provides the funds to do so.

Laws on Intestacy: Intestate succession for deaths after March 1, 2021:

1. The first $350,000 goes to the spouse if there is one. If the spouse of the deceased is alive and no one who was financially dependant on the deceased makes a claim, and the total value of the estate is under $350,000, the spouse inherits the entire estate subject to liabilities including taxes.  This is called the “Preferential Share”.
2. After the first $350,000, the remaining value is typically split between the spouse and descendants. If the value of the estate exceeds $350,000, the remaining amount is split between the spouse and descendants (children and sometimes grandchildren) of the deceased, subject to liabilities. The proportions by which the remaining estate is split depends on the number of children the deceased had and whether any children died before the deceased.
3. Children inherit the estate in the absence of a spouse. If there is no surviving spouse, the children inherit the full value of the estate subject to liabilities. If a child of the deceased has also died, their own children (the deceased individual’s grandchildren) equally inherit their parents’ share.
4. Parents inherit in the absence of a spouse and descendants. If there is no surviving spouse or descendants of the deceased, the parents of the deceased individual inherit the estate subject to estate liabilities.
5. Siblings inherit in the absence of parents, spouse, and descendants. If there are no surviving parents, spouse, or descendants, the siblings of the deceased inherit the estate subject to estate liabilities.
6. Inheritance laws grow complex in the absence of the above inheritors. If the only surviving relatives are not members of the deceased’s nuclear family, inheritance rules grow more complex.

Executor responsibilities for Intestacy

• An executor is the person in charge of taking control of an estate and securing its assets. Executors also deal with estate debts and distribute estate assets. 
• Executors have great power and discretion.  They also have personal liability for the decisions they make and must use their discretion in the best interests of estate beneficiaries. 
• Estate lawyers can help executors avoid costly mistakes. 
• Executors’ reasonable legal fees are paid directly by the estate.

Work with Katzman Estate Law on an Intestacy Probate Application

Timeline:

• After we are retained, it usually takes us a month or less to file the application for probate. 
• We may need cooperation and signatures from the beneficiaries of the estate, which can slow things down if cooperation is withheld. 
• The slowest part of the process is usually the Court’s processing time.  It can take months depending on the courthouse. 
• Where appropriate, an expedited application can save an estate thousands of dollars and months of delay. 

Katzman Estate Law: 

• We only practice estate law; we do not dabble.
• We charge a flat fee for most intestate probate applications. 
• We normally file completed probate applications within a month of being retained. 
• We represent both individuals and trust companies. 
• We first try to get our fee paid directly from a deceased person’s bank account. 
• Simply applying for probate is not enough.  We also provide advice to avoid costly mistakes. 
• We have offices in Toronto, Windsor, Chatham, and Sarnia, though in-person meetings are typically unnecessary. 
• We are also estate litigators who regularly argue estate matters in the Ontario Superior Court of Justice.
• Our lawyers also act as professional executors and have specific insurance to do so. 

Why call Katzman Estate Law?

• We focus only on estate law and are capable of handling complicated estate administration and litigation matters.
• We know how to spot and avoid problems that would otherwise delay the administration of an estate or make executors vulnerable to a lawsuit.
• Ontario estate law has existed for over 100 years, but it does change every so often and new trends develop.  Katzman Estate Law stays on top of these changes and trends. 
• We do not charge for initial consultations and present a plan to you before you are asked for a retainer.

What is the first step?

Call 416-616-4242 or 519-256-7130 for a conversation with a Katzman Estate Law lawyer.  We provide free phone consultations and can assist anyone with an Ontario probate matter.  We keep our clients informed with respect to where they are in the probate process, what the next step is, and what their obligations are.  Before committing to a retainer, we want potential clients to call, test our knowledge, and feel comfortable with us.  We want our clients to see first-hand what makes us different.