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Wills, Estates, Trusts Law
 
Application for a Certificate of appointment of estate trustee
 

Application for a Certificate of appointment of estate trustee is the Court process to apply for a Certificate of appointment that gives the estate trustee the authority to act on behalf of the deceased.

The Certificate of appointment of estate trustee is required when Court’s approval of the vesting of the assets of the deceased in the estate trustee is required – either to validate the will, or the choice of estate trustee, and with respect to the estate trustee, either because there may be a dispute about who it should be or because some beneficiaries are unable to consent on their own (people under disability including minors).

If the estate includes real estate that does not automatically vest in someone like the spouse of the deceased, then probate will almost always be required.

Application for a Certificate of appointment cannot be avoided even if:

  • The estate is small,

  • All beneficiaries agree,

  • There is only one beneficiary, or

  • The only assets are bank accounts or investments.

 

A certificate of appointment of estate trustee with a Will & Without Will

The steps involved in obtaining the Certificate of appointment of estate trustee will differ depending on whether the deceased die with or without a Will.

A certificate of appointment of estate trustee with a Will may be issued out of the Ontario Superior Court of Justice of the county in which the deceased has a fixed place of residence at the time of death or, if the deceased resided outside of Ontario immediately before death, in the county where the deceased held property at the time of death. In a properly drafted will, there is an estate trustee or trustees named who will have the right to deal with the assets in the estate immediately upon death, since the estate trustee’s authority arises from the will itself. The certificate is not the foundation of the estate trustee’s title, but only the evidence of it. The estate trustee has the authority to deal with the deceased’s property before the issuance of the certificate. However, many third parties such as banks, financial institutions, insurance companies, etc… would not release the fund held by them without a valid certificate of appointment. Additionally, the certificate of appointment offered protection afforded by the Trustee Act to the estate trustee acting on the authority of it.

A certificate of appointment of estate trustee without a Will is necessary to administer the estate of a deceased who died without a Will. On an intestacy, there is no person who can act immediately upon the death. Someone must apply to the Ontario Superior Court of Justice to be appointed estate trustee. The order of preference of the persons entitled to apply for a certificate of appointment of estate trustee without a will is set out below:

  1. married spouse of the deceased or the person with whom the deceased was living in a common law marriage relationship immediately before death;

  2. children of the deceased;

  3. grandchildren of the deceased if no child survives; and

  4. great-grandchildren of the deceased if no child or grandchild survives.

  5. the father of the deceased who leaves no issue;

  6. the mother of the deceased who leaves neither issue nor father;

  7. the sibling(s) of the deceased who dies without issue, father, or mother;

  8. the grandparent or grandparents of the deceased who dies without issue, parent, or sibling;

  9. the uncles, aunts, nephews, nieces, and great-grandparents of the deceased who dies without issue, parent, sibling, or grandparent;

  10. collateral relatives of more remote degrees, those of equal degree having an equal right; and

  11. the Public Guardian and Trustee (PGT).

 

Estate administration tax & Security bonds

Before the Ontario Superior Court of Justice issues a certificate, the estate administration tax must be paid. The Court will usually require security to be posted whenever an applicant for a certificate of appointment of estate trustee with a will is neither a resident of Ontario nor a resident of any other Commonwealth jurisdiction, even if:

  • The applicant is seeking a certificate of appointment of estate trustee with a Will;

  • There is an Ontario resident named as a co-estate trustee;

  • The testator has declared in the Will that he or she does not wish any security to be provided.

However, pursuant to the Rules of Civil Procedure, the Court has the discretion to dispense with the necessity of a bond or reduce the amount of penalty on the bond at the outset or at any later time in the administration of the estate. To obtain a leave from Court, an affidavit by the estate trustee must be filed with the other documentation included in the application process. The affidavit should recite the circumstances that justify dispensing with the bond. Those entitled to the estate must consent to the waiver of a bond.

However, pursuant to the Estates Act, bond is not required where the administration is a result of an intestacy; it is granted to the surviving spouse of the deceased; the net value of the estate is $200,000 or less for the purposes of the Succession Law Reform Act; and an affidavit of debts is filed with the application for administration. All of the above requirements must be satisfy to dispense with the bond requirement. Please note that if the estate was administered by the government of Ontario or any ministry thereof, including the PGT, then there will also be no bond requirement. Even if a security bond is required, when the administration is ended, the bondsmen must be released from the obligation.

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