A common question asked of trust and estate practitioners is “do I really need a will?”. People are quick to discount the importance of having a properly drafted will, especially when they feel that their assets are not complicated enough to create the need for one, or when the entirety of their Estate is passing to one person. They often believe it’s not worth their time or money to have a lawyer draft their will. In reality, passing away without a will could cost their Estate and loved ones far more time and money.

This blog will look at just one of the many reasons why it is beneficial to have a will, which is the ability to appoint an Estate Trustee. Generally, it may not be advisable for a testator to appoint an individual that lives outside of Ontario as their Estate Trustee. This is largely due to the fact that if anything needs to be completed in person, it is quite onerous for the Estate Trustee to complete said task. There may also be the need for an out of province Estate Trustee to either post a bond or receive a Court order dispensing with the requirement for a bond, which can be either an expensive or time-consuming process. That being said, it may be necessary for the deceased to appoint an Estate Trustee living outside of Ontario as they may not have any close friends or family living in Ontario who they could appoint.

The residency of an Estate Trustee becomes an even bigger issue if the deceased dies intestate. Under section 5 of the Estates Act, if the deceased has died intestate, a Certificate of Appointment of Estate Trustee Without a Will cannot be granted to an individual residing outside of Ontario. This could cause a large issue as the deceased may have no family in Ontario to apply for a Certificate of Appointment. As a note, this section does not apply to resealing letters under section 52.

This puts a burden on the non-Ontario resident who would normally have been the one to apply for the Certificate of Appointment. They must now spend the additional time and money to have someone apply on their behalf. This is not a burden that anyone wants to put on their loved ones, so it is important to discuss this with potential clients who are considering whether to draft a will.

Thank you for reading!

Darien Murray