Unfortunately, not everyone had the chance to write a will. When this occurs, the “rules of intestacy” are written laws (statutory provisions) that describe who receive (inherits) the deceased’s estate (their possessions: this may be property, money, etc.) when there is no will.
As there is no will to appoint an executor, also called the “estate trustee” to administer the estate, there is a process to formally appoint this person. An estate trustee is a person who has the legal power and authority to give out (distribute/administer) or manage the estate.
The process to appoint the estate trustee is called “probate” or applying to the court for a “Certificate of Appointment of Estate Trustee Without a Will". The probate process is a legal procedure which asks the court to give a person the authority (appoint them) as the “estate trustee” of the deceased’s estate.
The role of the Estate Trustee is to administer (give out) the estate and to:
- Attend to funeral arrangements
- Protect estate assets
- Pay creditors, satisfy liabilities (such as taxes)
- Distribute (give out) specific bequests and residue of the estate
As there is no will, the estate trustee must follow the “rules of intestacy” in their distribution (giving out) the residue (what is left) of the estate.
Who Can Apply to Be an Estate Trustee When There is No Will?
The deceased’s partner (married or common-law) has the right to apply for probate. If that does not apply, another closely related adult relative (child, sibling, parents, etc.) may apply. Otherwise, the courts have the right to appoint (determine) a relative who the courts views as the appropriate.
Applying for Probate
There are two types of probate applications:
- If the value of the estate is between $0-$150,000, then you are applying for a Small Estate Certificate.
- If the value of the estate is more than $150,000, then you apply for a Certificate of Appointment of Estate Trustee Without a Will.
Probate may not always be required. For example, if all of the deceased’s assets (what they owned) were held jointly (For example, check the deed /“title” to your home: who is as the owner? If the owner is the deceased and another person as “joint tenants", then the house passes outside of the estate to that other person, the living person through the “right of survivorship”).
If the deceased’s estate includes assets (things they own) that are held in their name alone, for example, then probate may be required to give out (administer) this asset.
Overview of the Probate Process
Court Forms
It will be required that you provide and/or complete various forms such as court forms and provide the original will (if there is one) and death certificate.
The value of the estate’s assets is identified
While filling out the application forms, you will be required to identify the value of any real property (e.g., homes, land) and the value of the deceased’s personal property (furniture, jewelry, artwork, beneficiary bank accounts etc.)
You should be aware that there is an Estate Administration Tax that will be calculated based on the total value of the deceased’s estate when a certificate is applied for and issued. The Estate Administration Tax is due to be paid when the probate application is filed.
Serve (deliver) Documents to All Required Persons
Before submitting all necessary forms to the court, you must serve (deliver) a copy of the application to any individual entitled (a beneficiary) to the estate (unless seeking a deferral). In the case of no will, these individuals can be identified based on the rules of intestacy.
The applicant will also be required to receive the consent of the majority of beneficiaries (those entitled to inherit from the estate) to be named as estate trustee as there is no will.
Submit All Required Documents to the Court
All required paperwork must be submitted in the county/district that the deceased lived (resided) in when they passed away. When submitting the application to the court, you must pay the Estate Administration Tax as a cheque payable to the Minister of Finance.
Bond
What is a bond? A bond is a legal agreement by the estate trustee that ensures they take responsibility for their duties in line with the law. If the estate trustee fails to do so, they are obligated to pay an agreed sum of money. The bond acts as protection in case of financial (money) loss due to an estate trustee’s dishonest actions or mistakes. Bond is usually equal to double the value of the estate. Your lawyer may assist you in seeking to waive the bond.
Want to learn more about how Estate Administration Tax (EAT) is calculated? Head over to Estate Administration Tax.
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