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Settling an estate

When you are appointed estate trustee by a deceased person's will, by their heirs or by the court, you have many important duties

More specifically, as estate trustee, you must:

  • respect the testator's wishes
  • draw up and register an inventory of the assets
  • pay the creditors
  • publish legal notices and file the deceased's income taxes
  • act as the administrator of the property of others, with prudence and diligence
  • settle the estate as soon as possible

Can I refuse or resign? Will I be remunerated for my services?

Our lawyers offer personalized legal assistance over the phone Monday to Friday, 9:00 a.m. to 6:00 p.m. Call 1-855-559-5501, toll-free.

See frequently asked questions about estate settlement for answers.

For definitions of frequently used terms, see the glossary.

4 types of wills

A will is a unilateral and revocable legal act that is in compliance with the statutory requirements, by which testators bequeath all or part of their property. The will only takes effect upon the testator's death. It expresses the deceased's last wishes regarding the distribution of their property after their death. The will must be in writing.

In Ontario, the Succession Law Reform Act (SLRA) recognizes the validity of 4 types of wills:

  • Holograph will (Article 6 of the SLRA)
    Entirely handwritten and signed by the testator.
  • Attested will (Article 4 of the SLRA)
    Written by the testator, a third party or by technical means (e.g. word processing), and dated and signed by the testator in the presence of 2 witnesses of legal age. This form of will, originating from the common law, is the most common will in Ontario.
  • International will (Article 42 of the SLRA)
    Derived from an international convention adopted by many Canadian provinces including Ontario, the will is written by the testator, a third party or by technical means. It is signed by the testator in the presence of 2 witnesses of legal age and a person authorized by the convention to testify that the document is the testator's will and that they knows its content. An international will is valid regardless of where it is drawn up, the geographical location of the property, or the nationality, domicile or residence of the testator.
  • Privileged will (Article 5 of the SLRA)
    Written by a member of the military while on active service and signed by them or another person in their presence and in accordance with their instructions, the will dispenses of all other formalities, including the requirement of the presence, attestation or signature of a witness. The will applies to:
    • members of the Canadian Forces on active service pursuant to the National Defence Act
    • members of any other naval, land or air force while on active service
    • sailors at sea or in the course of a voyage

Although the 4 types of wills are recognized by law, they can, after the death of the testator, be subject to verification proceedings by the court, to ensure that:

  • the deceased is indeed the author of the will
  • the will is valid in both form and content
  • it is the testator’s last will and testament

The procedure is not required to give legal effect to a will. However, it is inevitable in many circumstances because third parties with whom the estate has to deal often insist upon it.

To learn more about the process of applying for a certificate of estate trustee (formerly called application for probate) see:

Freedom of testation

A will is the written expression of testators' last wishes regarding the distribution of their property after their death. In Ontario, the law of succession derives largely from the common law or English law, which attaches a significant importance to the power to dispose of one's property by will. This principle of law was developed over the years by the common law courts. Today, this common law principle has been adopted in the Succession Law Reform Act.

Therefore, Ontarians have the right to dispose of their property at will. However, there are limits to the freedom of testation. First, testators must make adequate provisions for their dependent children and/or spouse. Second, the Family Law Act provides that married spouses are entitled to an equalization of net family property. Therefore, married spouses must consider the rights of the other spouse before disposing of their property by will. These exceptions to the freedom of testation are further discussed in Distribute estate assets.

A will that does not take into account the rights of dependants or married spouses under the Family Law Act is not invalid. However, if an interested party seeks to enforce these rights, a court may change the way an estate's assets are distributed. The personal representative must therefore, upon liquidation, take these rights into consideration even if they are not provided for in the will.

It is also important to note that, under section 16 of the Succession Law Reform Act (SLRA), a will is revoked by the marriage of the testator. Also, according to section 17 of the SLRA, the termination of the testator's marriage by a judgment for absolute divorce revokes:

  • a bequest of beneficial interest to the former spouse
  • the appointment of the former spouse as estate trustee
  • the conferring of a general or special power of appointment on the former spouse

Once the bequest is revoked, the will is interpreted as if the former spouse had predeceased the testator.

Documents and procedures

The death of a loved one creates certain obligations and procedures which must be taken care of before the estate can be distributed, such as disposing of the body and obtaining proof of death.

Proof of death

The official proof of death is a death certificate, issued by the Registrar General and confirming the death of a person.

The death certificate is also used to begin the estate administration process and to terminate programs such as health insurance, auto insurance, social insurance, government pensions and welfare. It also determines the start date of benefit payments to the surviving spouse.

However, in Ontario, a proof of death certificate issued by a funeral director is sufficient to prove the death of the testator at almost every step of the estate administration process.

Medical Certificate of Death

When someone dies, whether at home, in a healthcare facility or elsewhere, a medical death certificate must be drawn up. Most often it is a doctor or coroner who prepares it and gives it to a relative of the deceased and the funeral director who takes charge of the deceased's body.

Statement of Death

This document is completed by the funeral director with the declarant (usually a close relative). The director fills out and signs the part of the declaration regarding the disposition of the body and submits both the Statement of Death and the Medical Certificate of Death to the local municipal clerk's office to register the death and obtain an official death certificate. It is important the declaration be filled out accurately.

Disposition of the body and funeral arrangements

Disposition of the body

Disposing of the body and obtaining proof of death are steps which must be completed before accepting a succession or starting the estate administration process.

It is the funeral director who must issue proof of death. You can also apply for a death certificate at the Office of the Registrar General.

The personal representative has the obligation and responsibility to properly dispose of the deceased's body. Deciding on funeral arrangements for the deceased is at their sole discretion. If deceased's wishes as to the disposition of his body are not known, the deceased's relatives should, to the extent possible, look through the deceased's personal effects to try and find something that expresses his final wishes.

It is also important to check to see if the deceased has made funeral pre-arrangements. Because such arrangements are made by written contract, you should be able to find the pre-arranged funeral services contract in the deceased's personal papers. Unfortunately, there is no mandatory registration system for last wills and testaments or pre-arranged funeral service contracts.

See Find the testamentary dispositions and have the will probated.

To the extent possible, whether or not the deceased has clearly expressed his last wishes with regards to the disposition of his body, the personal representative has a moral obligation to try to respect or at least dispose of the body in accordance with the deceased's values. The beneficiaries may appoint a funeral director to explore different options to this end.

Scattering the ashes

Ashes may be scattered on your own land or private property. Ashes may also be scattered on public property, as long as it does not cause a public disturbance. Before proceeding, check with local governmental (municipal) authorities.

Funeral expenses

Generally, funeral expenses are paid by the estate. If the estate is solvent, the cost is paid out of the deceased's assets. However, if the estate is insolvent, the person who signs the contract with the funeral director is held personally liable for the payment of the funeral expenses.

To learn steps required to start the estate administration process, including the obligations of the personal representative all the way through to the distribution of estate assets, see Estate settlement process.

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