What Happens If an Executor Dies or Cannot Act in Ontario?

A will names an executor, but when the time comes that person has died, will not act, or is unwell. The family is left wondering who is in charge and whether the will still works.

The answer depends on whether other executors were named, whether the executor had already started, and what the will says. This article walks through the usual paths in Ontario.

Start with the will

Many wills name more than one executor or an alternate. Read the will first to see who else is named and whether it says what happens if someone cannot act. Where more than one executor is named, the rule that their powers pass to the survivors applies unless the will provides otherwise.

It also helps to know that a person named as estate trustee in a will does not have to act. So a named executor who simply does not want the job is not forced into it, although the steps for stepping aside differ depending on whether they have already started.

Where there are co-executors

Under Trustee Act s. 46(1), the powers of several personal representatives vest in the survivor or survivors unless the will provides otherwise. Rule 74.14.2(1)(a)(ii) also addresses an estate trustee's death where the surviving estate trustees continue to be authorized to act.

In practice this means the remaining executors can usually carry on, though paperwork with the court or institutions may need updating.

Where the only executor has died or declines

• If a named executor survives the deceased but dies without having taken probate, administration passes as if no executor had been appointed.
• If a named executor renounces, their rights cease as if they had never been appointed. Renunciation is on Form 74G.
• If a named executor does not respond when summoned by the court, their right to the executorship wholly ceases.

Where a replacement is needed under the will, Rule 74.06 governs a certificate of appointment of succeeding estate trustee with a will, and it requires a Form 74G renunciation from every living named estate trustee.

If a named executor is simply silent, any person who appears to have a financial interest in the estate may bring a motion for an order requiring that person to accept or refuse appointment as estate trustee with a will.

Who can be appointed instead

Where there is no will, or the named executor refuses to prove it, the Superior Court of Justice may grant administration to the spouse (including a person in a conjugal relationship outside marriage), the next of kin, or both, as the court thinks best.

The persons entitled, or a majority of those resident in Ontario, may ask that another person be appointed, and the court may appoint someone else where it is necessary or convenient. Ontario.ca also notes beneficiaries may nominate another person.

If a bond is needed with the application, for example where the applicant was not named as estate trustee, it must be filed with the probate application. A bond is not required for a small estate unless a beneficiary is a minor or incapable.

If a beneficiary is a child under 18, the Office of the Children's Lawyer may act on the child's behalf in estate matters.

If the executor is unwell or not doing the job

The Superior Court of Justice may remove a personal representative on any ground on which it may remove any other trustee, and appoint another proper person. Any person interested in the estate, or an executor who wants to be relieved, may apply. Whether a particular health problem or delay is enough depends on the facts.

An executor who has already started cannot retire by deed; they must apply to court. Where an estate is stalled, any person with an apparent financial interest may apply for directions, and the court may direct that an estate trustee during litigation be appointed.

Whoever takes over will need to understand what has been done so far. Estate trustees must keep accurate records of the estate's assets and transactions, so ask for those records and any court papers early.

What to do next

If the deceased owned real property or assets held by a financial institution, the estate normally must be probated, although Ontario's official page also says probate is not always required. Once a certificate of appointment is received, the estate trustee must file an Estate Information Return within 180 calendar days.

• Find the original will and a death certificate if the executor has died.
• List every person named as executor or alternate.
• Find out whether the executor had applied for probate or taken any steps.
• Gather any records the executor kept of the estate's assets and payments.
• Talk as a family about who is willing to act.
• Speak to a lawyer before applying, so the right forms and renunciations are included.

Frequently asked questions