When a person prepares a will, they usually name an executor who will manage their estate. Often the will also names an alternate executor in case the first one cannot or does not want to act. But many families face a different situation. Sometimes a will says nothing about who should serve as Estate Trustee. Sometimes the named executor cannot act. And in many cases the deceased dies without a will at all.
This leaves families asking a very common and important question. Who becomes the Estate Trustee when no one is appointed.
The answer in Ontario is governed by statute, and while the court has discretion, there is a clear order of priority that guides the process.
The Legal Framework: Section 29 of the Estates Act
Ontario law sets out who is entitled to apply for a Certificate of Appointment when there is no named executor. Section 29(1) of the Estates Act provides that when someone dies intestate or when the executor named in the will refuses to act, the Superior Court of Justice may appoint:
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The spouse of the deceased or the person with whom the deceased was living in a conjugal relationship immediately before death
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The next of kin of the deceased
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A combination of the spouse and next of kin
The court ultimately decides who is best suited to administer the estate.
The legislation also recognizes that there may be more than one person entitled to apply. If multiple next of kin have equal priority, the court may appoint one or more of them, or decide which of them is the most suitable.
The Order of Priority in Practice
Although the language of the statute gives the court flexibility, Ontario courts generally follow a predictable order:
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Spouse or partner
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Children
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Other next of kin such as parents or siblings
The court’s goal is to place the administration of the estate in the hands of the person with the closest connection to the deceased, provided that person is capable of managing the responsibilities.
When the Court Exercises Discretion
The priority list is not absolute. Section 29(3) of the Estates Act allows the court to depart from the usual order if it believes someone else is better suited. For example:
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The spouse may not be capable due to illness or age
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Beneficiaries may raise concerns about conflict of interest
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A proposed administrator may live out of province and be unable to manage the estate effectively
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There may be evidence of family hostility that would make administration difficult
The court’s focus is always on what is in the best interests of the estate.
When Beneficiaries Influence the Court’s Decision
Section 29(2) provides that the court may consider the views of a majority of the beneficiaries when selecting an Estate Trustee. If most beneficiaries agree on who should act, the court will often give weight to that consensus.
This is particularly relevant when:
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Multiple next of kin have the same degree of relationship
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There is tension among siblings
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One proposed Estate Trustee is perceived as more organized, impartial or reliable
The beneficiaries do not make the final decision, but their preferences can shape the outcome.
What Happens When No Family Member Is Suitable
If no eligible family member is willing or able to act, or if disputes make administration unmanageable, the court may appoint a neutral party. This could be:
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A trust company
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A professional trustee
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The Public Guardian and Trustee in some circumstances
Neutral appointments are often used when the estate is complex or the family is deeply divided.
A Practical Understanding of the Process
Determining who should be appointed as Estate Trustee is not always straightforward. Even when the order of priority is clear, the court must assess suitability, family dynamics, and the practical realities of administering the estate.
Families often experience uncertainty during this stage. Clear communication and early legal guidance can make the appointment process more efficient and reduce the likelihood of conflict.
A Human Perspective
When no one is appointed in a will, or when someone dies without one, the law steps in to create order and structure. But behind every rule is a family working through grief, responsibility and sometimes disagreement. Understanding how the court makes these decisions can provide clarity at a time when it is most needed, and can also help families make informed choices about who is best placed to carry out the work during a difficult period.