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Our Wills and Estates Group recently attended a seminar provided by the Law Society on the administration of estates. We have some tips for administering an intestate estate from the seminar to share.

First things first, what is an intestate estate? Intestacy occurs when a person dies without a Will, or with a Will that is invalid. For example, in Ontario, marriage automatically revokes a person’s current Will unless the person’s Will was made expressly in contemplation of the specific, pending marriage. If a person fails to make a new Will in contemplation of marriage or draft a new Will after they have gotten married, that person will die intestate.

If a person dies intestate, there are various steps that the deceased’s survivors will have to take in order to deal with the person’s assets.

It is important to keep in mind that certain time limitations need to be observed and met in administering any estate, including those related to the sale or distribution of property, as well as claims for entitlements under the Family Law Act or the Succession Law Reform Act.

One of the first steps that one or more of the survivors will have to take is to hire a lawyer and make an application to the court to obtain a Certificate of Appointment of Estate Trustee without a Will. The person or persons appointed will be legally authorized to administer the estate. In addition to these extra legal costs, the court often requires a costly administrative bond to be posted as security for the diligent and honest administration of the estate. Together these costs are often more than it would have cost for the person to draft a Will. Additional steps required to make an application for a Certificate of Appointment of Estate Trustee without a Will are outlined below.

Searching for a Will

An Application for Appointment of Estate Trustee without a Will requires the applicant(s) to swear that they have carefully searched for a Will, and that they believe that the deceased did not leave one. The search could include the deceased's home, office, law firm, banking institution(s), the Ontario Courts, the Law Society of Upper Canada – or also inquiries to relatives, friends or neighbours.

Determining the Assets of the Estate

A complete list of the estate’s assets and their value at the date of death is required for an Application for Appointment of Estate Trustee without a Will. This does not include assets which do not form part of the estate. This may be challenging for an intestate estate where the deceased may or may not have left their personal affairs in order. Any property ownership issues also need to be resolved as part of this step.

Determining the Estate Beneficiaries

Finally, the beneficiaries of the intestate person's estate will also need to be determined. When a person dies intestate, their property is divided amongst those entitled to a share of the estate’s assets according to a statutory formula contained in the Succession Law Reform Act. This formula does not take what they might have wanted to do with their property into account. Any domestic agreements, including a separation agreement, signed by an intestate person with their spouse should be reviewed to determine its effect on the surviving spouse's rights against the estate.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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