What Happens If an Executor Dies or Cannot Act in British Columbia?

A person is named as executor, and then they die, become seriously ill, lose capacity or simply cannot carry on. The family is left wondering whether the will still works and who has authority.

British Columbia law has several routes depending on when the problem arises: before probate, after probate, or when the executor is also a trustee. This article walks through them.

This article covers the law of British Columbia.

Before probate: the executor dies or declines

An executor's appointment ends if they survive the will-maker but die without obtaining probate, or if they are required to take probate and do not appear. The estate is then administered as if they had never been appointed.

A named executor may also renounce. Unless the court orders otherwise, the estate is then administered as if that person had never been named. A person renounces by filing a Form P17 Notice of Renunciation, or by being deemed to renounce under Rule 25-11(5).

If a named executor is simply doing nothing, any interested person may require them to accept or renounce, or to explain why administration should go to another willing person. A cited executor who does not obtain probate within 6 months after service of the citation is deemed to have renounced, unless the court extends the time.

Who steps in when no executor can act

If no named executor will or can apply, the court may grant administration with will annexed to others in the statutory order of priority. In special circumstances, the court may appoint any person it considers appropriate.

Where there are several executors, the others can often carry on. If some co-executors renounce or do not join the probate application, the acts of the executors who obtained probate are as valid as if all had acted. An executor who did not join the application is not liable for assets that later come under a co-executor's control.

After probate: death, discharge or removal

If a personal representative dies after a grant, a person may apply to be substituted by filing the death certificate, an affidavit and an affidavit of delivery. A personal representative who wants out may apply to the court to be discharged, before or after a grant. Discharge releases them from claims arising from their acts in office, except undisclosed acts or omissions, but does not discharge them as trustee.

Where an executor has lost capacity or cannot do the job, any person with an interest in the estate may apply to remove or pass over a personal representative. Subject to the will, the court may do so on listed grounds:

• refusing to act without renouncing
• incapacity
• purporting to resign
• a conviction for an offence involving dishonesty
• undischarged bankruptcy
• a Patients Property Act order
• being unable or unwilling to carry out duties to the point of hampering administration

A creditor may apply on the dishonesty or bankruptcy grounds only if their claim exceeds a prescribed amount. Removal as personal representative does not remove the person as a trustee.

What happens after a substitution

When the court removes or discharges a personal representative, it must appoint a consenting substitute, unless administration is complete or a new appointment is unnecessary. The former representative's grant is revoked. Within 30 days of the substitution order, the former representative must hand over the estate property and records and sign any documents needed. They may not keep funds for their own expenses unless the court orders otherwise.

An application to remove or substitute is made under Rule 25-14(1)(d) of the Supreme Court Civil Rules, and must be personally served.

Practical next steps

• Find the original will and confirm who is named as executor and alternate.
• Get a death certificate if the executor has died.
• Check whether probate has already been granted.
• Ask whether any co-executors are named and willing to act.
• Do not move or sell estate assets until you know who has authority.
• Talk to a lawyer about renunciation, substitution or removal.

Which route applies depends on the facts, so a lawyer can confirm the right application for your situation.

Frequently asked questions