What Happens If the Named Executor Dies Before Probate in Alberta?

Losing a loved one is hard enough without finding that the person they chose to handle their estate has also died, or can no longer act. In Alberta, the person named in a will to manage the estate is called the personal representative, and what happens next depends on when that person died and whether the will names anyone else.

This article walks through the main scenarios under the Estate Administration Act and the Surrogate Rules, in plain language. It does not cover every situation, so a lawyer can confirm how the rules apply to your family.

This article covers the law of Alberta.

When the named executor dies before or at the same time as the will-maker

If the named personal representative dies before the will-maker, at the same time, or in circumstances where nobody can tell who died first, section 39 of the Estate Administration Act says a substitute personal representative named in the will takes over.

So the first step is to read the will carefully for a backup person. If one is named, that person is the one who generally applies for the grant. If none is named, the priority rules described below come into play.

When the named executor dies after the will-maker but before a grant

A named personal representative who dies after the will-maker but before obtaining a grant loses authority. Someone else must be found to apply, and who that may be is worked out under the priority rules described below.

A related rule is that a named personal representative who fails to prove the will within the time the court orders also loses authority.

When one of several co-executors dies

Where more than one person is named and one dies, authority vests in the surviving personal representatives. The survivors do not need to find a replacement just because one has died.

Co-personal representatives must act unanimously unless the will or the Court orders otherwise. If only one survivor remains, there is no one left to disagree, but the will may still affect how things proceed, so it is worth reading the wording closely.

If no one named is left: who can apply and how a replacement is chosen

Where there is a will, priority for a grant runs from the named personal representative down a statutory list to the Crown. Residents of Alberta are preferred among equals, and the Court may choose among equal applicants.

The people entitled to administer may nominate a replacement if the named personal representative cannot or will not act, using Form GA13. Where a named person is unable or unwilling to apply, they can also renounce in Form GA11 or by another method the court approves. Before a grant of administration issues, persons of higher or equal rank may also need to renounce, although the court can dispense with renunciation.

Form GA1 lists 'administration with will annexed' as a prior grant type, and an application for that kind of grant is treated as an application for a grant of administration of unadministered property. Which type of application fits your situation depends on the facts, so it is worth confirming with a lawyer.

Bonds, minors and court help

• Bond: a non-resident personal representative must provide a bond or other security approved by the court, but none is needed if the representative, or one of two or more representatives, is resident in Alberta.
• Waiving or reducing a bond: a non-resident can apply in Form GA1 to dispense with the bond, approve other security or reduce the amount, and a beneficiary can consent to a waiver or reduction using Form GA14.
• Minor beneficiaries: the personal representative must give the Office of the Public Guardian and Trustee a copy of the grant application and a GA4 Notice to Public Trustee form.
• Special circumstances: the Court may issue a grant to the Public Trustee or another person.
• Directions: a personal representative or a person interested in the estate may apply to the court for directions at any time.

A personal representative may also apply for advice or direction on any question about managing or administering the estate.

What to do next

• Find the original will and check for a named substitute or additional co-executors.
• Confirm the date of death of the named executor and the will-maker, because the order matters.
• Identify who would rank next on the priority list and whether they live in Alberta.
• Talk with the people entitled to administer about whether they will apply, renounce or nominate someone using Form GA13.
• Note whether any beneficiaries are minors, since the Public Trustee must receive notice.
• Speak with a lawyer about the application, any bond, and whether to ask the court for directions.

Frequently asked questions