2015-09-29

Finding information about an estate or a will in Ontario

There is no official register or repository of Wills in the Province of Ontario. Wills can be drafted by any lawyer and are often prepared (usually with errors) by non-lawyers, including the deceased. A lawyer is not obliged to keep the original, which may have been given to the testator, and then it may have been lost. The destruction or loss of an original Will is presumed to indicate that its contents were revoked by the testator, unless there is evidence to the contrary. As a result, finding and proving a missing Will in Ontario can be very difficult.

Not every estate is formally administered in Ontario. After a death, there is no obligation to file an official application with the Court. It may in fact be necessary to do so in order to liquidate or transfer certain types of assets (such as land, or some investments). But in other cases, if the assets were simple (furniture, jewelry, etc.), a formal court application is not required. In other cases, the deceased may have died without a Will, or without significant assets. Finally, if the assets were held in joint ownership with right of survivorship in favour of another person, the property automatically passes to the joint owner, who is often a spouse, a cohabitating partner or a child of the deceased.

Furthermore, if it is known at early stages that the deceased’s debts exceed the assets, it is common in Ontario for such an estate to be simply abandoned and not administered. The Office of the Public Guardian and Trustee in Ontario consistently exercises its discretion to refuse to administer insolvent or low value estates. A creditor has the right to choose to administer the estate and seek at least partial recovery of the debt. But because of the costs, and the duty to administer on behalf of all the creditors, this is a rare occurrence. ‘So what will happen to my relative and his possessions?’ The short answer is – not much. Life goes on. A family member can volunteer to pay for a proper funeral and burial, while avoiding the legal risk of becoming responsible for debts if precautions are taking about not meddling with the administration otherwise (see a separate discussion on responsibility for debts). In most cases, if the deceased had some money in a bank account, the bank will facilitate a transfer to pay for all or part of the funeral and burial. Someone who has paid for funeral expenses can claim any death benefit to which the deceased is entitled, from the Canada Pension Plan. Or the deceased will receive a simple burial through the local municipality. A house and contents will be abandoned to the mortgage holder or the municipality. A landlord can take possession of a rental unit after 30 days and discard its contents.

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