When a person dies, someone must step forward to gather in the assets, pay the debts, and see that whatever remains reaches the right hands. That someone is the estate trustee. But who is entitled to take on the role, and what happens when the obvious candidates are unavailable, unwilling, or simply do not exist? Ontario law answers these questions through a descending order of entitlement that begins with those closest to the deceased and extends outward to family, friends, professionals, creditors, and ultimately the Crown itself. Understanding where each candidate sits on this ladder is essential for any practitioner advising on the administration of an estate, and it becomes especially important where a will is silent, an estate is insolvent, or no one wishes to act. This article walks through each rung, from the person named in the will down to the Public Guardian and Trustee of last resort.
Individuals with Priority
Where an individual died with a will, an estate trustee’s entitlement to apply for a Certificate of Appointment of Estate Trustee simply comes from the will itself. However, where an individual dies intestate, the Estates Act dictates who has priority to apply. Section 29(1) of the Estates Act provides that the administration of an estate may be performed by a spouse, either by marriage or common-law, or by any next of kin. Where there are multiple individuals who are of the same degree of kindred to the deceased, they are equally entitled to apply.
When No One Steps Forward
However, under subsection (2), where those entitled prefer not to act themselves, they may request that the court appoint another Ontario resident to act as Estate Trustee. Such an individual might include another family member, a trusted family friend, an accountant or lawyer, or even a trust company. This, of course, is conditioned on the consent of the individual chosen.
Subsection (3) gives the Court a broad discretion to appoint a suitable administrator where no one can apply under subsections (1) or (2), including where it is necessary or convenient by reason of the estate’s insolvency or other special circumstances. The Court may also impose any terms or limitations it considers appropriate to protect any interested individual to the Estate. In practice, this is often how a creditor (or a creditors’ nominee) obtains authority to administer an otherwise unadministered insolvent estate.
The Crown Administration of Estates Act
The starting point is section 1(1) of the Crown Administration of Estates Act, which permits the Superior Court of Justice, on the PGT’s application, to grant the PGT letters of administration or letters probate where three conditions are met:
- The person died in Ontario or was a resident of Ontario;
- The person died intestate as to some or all of his property, or dies leaving a will without naming an executor or estate trustee who is willing and able to administer the estate; and
- There are no known next of kin who are residents of Ontario and are willing and able to administer the estate, or the only known next of kin are minors and there is no other near relative who is a resident of Ontario and is willing and able to administer the estate or to nominate another person.
Beyond the legislative requirements, the PGT has policy considerations to consider before it will act as an estate trustee of last resort. These further criteria include:
- The deceased was an Ontario resident or owned real estate in Ontario;
- The deceased did not make a will or the deceased did make a will but the executor has since died or become incapable;
- There are no known next-of-kin living in Ontario or the next-of-kin are minors or mentally incapable adults; and
- The estate meets the PGT’s financial criteria after payment of the funeral and all debts owing by the estate.
Where the PGT is appointed, section 1(2) directs that it administer the estate for the use and benefit of all the lawful heirs, and, if there are none, for the use and benefit of the Crown.
Takeaways for Practitioners
The ladder of estate trustees reflects a simple but important principle: an estate should never go unadministered merely because the first choice is unavailable. For practitioners, the key is to work methodically down the rungs; confirm first whether a will names a willing and able executor, then identifying those with priority on an intestacy under section 29(1), and, where they decline, considering who might properly be nominated under section 29(2) or appointed as a creditor-administrator under section 29(3). Only once these options are exhausted does the Crown Administration of Estates Act bring the PGT into play, and even then only where both the statutory conditions and the PGT’s own policy criteria are satisfied. Approaching the question in this ordered way allows counsel to advise clients realistically about who can act, to anticipate the residency, consent, and bonding requirements that attach at each stage, and to avoid the common misconception that beneficiaries, rather than those entitled to administer, control the appointment. In the end, a clear grasp of the ladder ensures that even the most difficult estate, whether insolvent, heirless, or simply unwanted, finds its way into capable hands.
Thank you for reading.
By Filbert Yung