In Ontario, Canada, if parents do not make a will (intestate) during their lifetime, the distribution and management of their estate must comply with the provisions of the Succession Law Reform Act and the Estate Administration Act. As legal heirs, children must initiate the formal estate certification process by applying for a Certificate of Appointment of Estate Trustee. This article combines Ontario legal practice to analyze the entire process and key legal points of estate certification in the absence of a will.

I. Statutory rules of succession to an intestate estate

Under section 5 of the Inheritance Reform Act, an intestate estate will be distributed in the following order:

  1. Spouse and children inherit jointly: If the deceased leaves behind a spouse and children, the estate will first allocate a “preferential share” of $50,000 and household appliances to the spouse, and the remaining portion will be shared by the spouse and children in proportion (the spouse accounts for 1/3, and the children jointly account for 2/3)
  2. Only children inherit: If the deceased has no spouse, the entire estate is equally divided among the children (the descendants of the deceased children can inherit by substitution)
  3. No direct descendants: inheritance is in the order of parents, brothers and sisters, and other direct/collateral relatives.

Key legal points:

  • “Children” include legitimate children, illegitimate children and adopted children. Stepchildren need to prove that they have a foster relationship before they can claim inheritance rights.
  • If the children have disputes over the order or share of inheritance, they can apply to the court for a ruling (e.g. claiming that a child has not fulfilled their maintenance obligations and should receive less).

II. The core process of applying for probate

In the absence of a will, the children must apply to the Ontario Court to appoint an Estate Trustee. The specific steps are as follows:

1. Identify candidates for estate administrator

Eligibility Requirements:

  • Must be a Canadian resident aged 18 or above (non-residents must provide a sponsor)
  • Usually the children will consult and nominate one or more people to take the role. The role can also be taken by the spouse or other relatives.
  • No criminal record and conflict of interest (if you are also an estate debtor, you will be disqualified)

▶ Practical advice: Families with many children are advised to reach a consensus in advance to avoid delays in the process due to disputes over the qualifications of the administrator; if negotiation is not possible, the court will designate based on the principle of “the most suitable person to manage the estate” (such as economic management ability and closeness of the relationship with the heirs).

2. Prepare application documents

The following core documents need to be submitted to the Ontario Court of Justice:

  1. Basic identity documents:
    • Death certificate of the deceased (original and English translation)
    • Applicant’s identity document (passport, driver’s license, etc.)
    • Proof of kinship (birth certificate, household registration translation, notarized kinship certificate)
  2. Heritage Information List:
    • List of assets (bank accounts, real estate, stocks, insurance policies, etc., with value and vouchers)
    • List of liabilities (mortgage, credit card balances, medical expenses, etc., with creditor information)
    • Proof of the last residential address and death address of the heir
  3. Statutory Declaration Documents:
    • “Application for Administration of an Intestate Estate” (Form 41A, available for download from the Ontario Court of Justice website)
    • “Declaration of Notification to Relatives and Creditors” (It is necessary to declare that all legal heirs and known creditors have been notified)
    • “Qualification and No Conflict Statement” (the manager declares that there is no conflict of interest and qualification flaws)
3. Submit an application to the court

▶ Process steps:

  1. Submit all documents to the estate administration office of the Ontario Superior Court of Justice where the decedent was domiciled at the time of death.
  2. Pay the application fee (currently $216 CAD, with a cheque or credit card payment receipt)
  3. The court will initially review the completeness of the documents, and any missing documents must be supplemented within 30 days.
4. Notify heirs and creditors

After the court accepts the case, the administrator must, within 10 days:

  • Send a Notice of Application for Estate Administration to all legal heirs (including spouse, children, parents, etc.) to inform them of their right to raise objections
  • Publish a notice of claim declaration in the legal notice media designated by Ontario (such as The Globe and Mail) within 45 days

Objection handling: If an heir or creditor raises an objection within 45 days, the court will organize a hearing and both parties will be required to submit evidence to support their claims (e.g., if a claim is made that a child has been deprived of inheritance rights, evidence of abuse is required).

5. Court hearing and issuance of certificate

If there is no objection or the objection is untenable, the court will hold a simplified hearing (usually without the need for the applicant to appear in court) and issue a Certificate of Estate Administration within 15 days after the review is passed. This certificate is a key document for the administrator to legally dispose of the estate, and can be used to:

  • Withdraw bank deposits, transfer property registrations, sell inheritance assets
  • Representing the estate in litigation (such as debt collection or responding to creditor claims)

III. Special circumstances of estate distribution and management

1. Multiple children serve as joint administrators

  • The respective authority must be clearly stated when applying (such as jointly signing documents or dividing management responsibilities)
  • If no agreement can be reached, the court may be requested to appoint a single administrator or to establish decision-making rules.

2. The estate is not sufficient to pay the debts

  • The administrator must repay debts in the legal order: funeral expenses → estate management expenses → taxes → general debts
  • When the estate is insolvent, the creditors can only be compensated for the actual value of the estate and cannot seek compensation from the heirs personally.

3. Certification of overseas assets

  • The Ontario Certificate of Estate Administration is generally recognized in Canada. If it involves overseas assets (such as Chinese real estate), additional overseas legal certification is required (such as notarization by the Chinese Embassy or Consulate in Canada).
  • It is recommended to consult a lawyer in the country where the assets are located to confirm the acceptance of the Ontario Certificate by local law.

IV. Key points of practical operation and risk warning

1. Key to evidence preservation

  • Collect all financial account statements, property deeds, insurance policies and other proof of assets of the heir and keep them for at least 7 years
  • Communication records (emails, text messages) with other heirs must be properly preserved to avoid subsequent distribution disputes

2. Legal statute of limitations

  • The application for probate certification must be submitted within 3 years after the death of the heir. If the application is overdue, the priority right to apply may be lost.
  • Creditors must declare within 6 months after the announcement of the claim, otherwise they may lose the right to be compensated.

3. Professional lawyer assistance

  • For complex cases (such as those involving cross-border assets, disputes over multiple children, and corporate equity), it is recommended to entrust a lawyer with inheritance law qualifications to avoid the rejection of the certificate due to procedural errors.
  • The lawyer can assist in drafting the “Inheritance Distribution Agreement” to clarify the division of shares among the children and the method of compensation (such as the child who obtains the property paying cash compensation to other children)

concluding remarks

When parents do not make a will, children must strictly follow the statutory procedures of Ontario when applying for probate, from the nomination of an administrator to the preparation of an asset list and court application, and each link must ensure that the documents are compliant and the procedures are complete. It is recommended to consult a professional lawyer at the beginning of the process to avoid inheritance disputes through legal review and ensure that the estate is fairly distributed according to statutory rules. Canadian courts focus on protecting the legitimate rights and interests of heirs in cases of intestacy, but complex legal rules and evidence requirements still require professional support to achieve efficient and fair estate management.

(Legal basis for this article: Sections 5-13 of the Ontario Succession Law Reform Act; Sections 22-28 of the Estate Administration Act; Ontario Court Practice Guidelines)

JZW Law has an experienced team of probate lawyers. They are fluent in both Chinese and English and provide professional legal services. We specialize in handling complex property division, corporate equity, trusts, overseas assets and other related issues. We provide initial consultation services, please contact us for more information or to schedule a consultation.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. If you need legal help, please consult a professional lawyer.