My loved one died without a will. Can I apply to be their estate trustee?
2. Understand who can apply to be estate trustee
Only Ontario residents can be appointed as an for a person who died without a will. And there are rules that say the order in which people can apply. This is as follows:
- great-grandchildren, and so on if there is a direct relationship to the person who died
- the father or mother of the person who died
- the brothers or sisters of the person who died
- the grandparent(s) of the person who died
- the uncles, aunts, nephews, nieces and great-grandparents of the person who died
- other relatives, such as cousins, who are not as closely related
- the Public Guardian and Trustee if there are no relatives in Ontario
If you want to be estate trustee and there are other people who are above you in this list, the court will often require them to “renounce” or give up their right to be trustee. Sometimes the court also wants most, or all, of the who live in Ontario to agree to you becoming estate trustee.
If there is more than one person with the right to apply, the court can decide whether to appoint one or more of those people.
If you have or may have a claim against the estate, you will not be allowed to be the estate trustee. For example, you might want to make a dependant’s support claim if you’re the common-law partner or step-child of the person who died. Or you might want to make an equalization claim if you’re the married spouse of the person who died.
Check to see if anyone else has applied
Before you apply to be estate trustee, check to see if anyone else has already applied. You can check the estates courthouse of any Superior Court of Justice to see if someone has filed an application to be estate trustee anywhere in Ontario.
Or, you may hear from a beneficiary that someone else has filed an application to be estate trustee. This is because notice has to be given to beneficiaries by anyone filing an application.
Notice that someone else has applied
Before appointing an estate trustee, the court has to send a notice of your application to the Estate Registrar for Ontario. If someone else has applied in another court, you will be notified. Both applications will be put on hold until a judge decides which one can go ahead.