Named Executor Has Dementia: What Happens to the Estate in Ontario?

A will names an executor, but years later that person has dementia or can no longer manage their own affairs. When the person who made the will dies, the family is left asking who can now deal with the bank, the house and the debts.

This article explains, in general terms, how another person can be put in charge of an estate in Ontario, who can apply, and what the court process involves. The right route depends on the will, who is still able to act, and who the beneficiaries are, so talk to a lawyer before you file anything.

What it means when the named executor cannot act

Probate is usually needed if the deceased owned real property or held assets at a financial institution that requires it. Who can act in place of an incapable executor depends on the will and the facts, so it is worth confirming with a lawyer.

Ontario's guidance recognizes this situation. If a named executor has died or become incapable and no eligible person can administer the estate, the Office of the Public Guardian and Trustee (OPGT) may apply to be appointed estate trustee of last resort, although other conditions also apply.

Who can step in

If the OPGT ends up as estate trustee, its fees follow a regulation under the Public Guardian and Trustee Act. Professional services such as tax filings, legal work or real estate maintenance are paid from the estate as expenses.

The probate application when someone else steps in

The new applicant uses the same court process as any other. Probate is applied for in the Superior Court of Justice. A Small Estate Certificate is used for estates valued at up to $150,000; otherwise a Certificate of Appointment of Estate Trustee is needed. The application is filed where the deceased lived.

• The original will and any codicil, and proof of death.
• Form 74A, signed before a Commissioner for Taking Affidavits, with the value of the real property, personal property and whole estate at the date of death.
• A renunciation (Form 74G Part A) or a consent to appointment (Form 74G Part B), where the situation calls for one.
• A bond (Form 74L or 74M), or a motion to dispense with a bond, where required.

Rule 74.04 lists the required forms for each situation. How an incapable executor is dealt with in the paperwork depends on the facts, so it is worth confirming with a lawyer.

Bonds, notice and cost

A bond is required if there is no will, if the applicant is not the named trustee, or if the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country. The surety can be an Ontario-licensed surety insurer or personal sureties, two for estates over $100,000 and one for $100,000 or less, and the bond is generally double the estate value unless a judge orders otherwise.

The applicant must also send a copy of the signed application to each estate beneficiary before filing. If the incapable executor is also a beneficiary, a person who is incapable under the Substitute Decisions Act is served through their fiduciary with authority to act in the matter; if there is none, service is on both the Public Guardian and Trustee and the individual.

Estate Administration Tax is not a court fee. For applications on or after January 1, 2020, there is no tax on an estate of $50,000 or less, and above that it is $15 per $1,000 (or part thereof) of the estate value. The estate pays it, not the trustee personally. Ontario says applications are typically processed within 15 business days, longer if documents are missing or a judge must decide an issue.

What to do next

• Locate the original will and confirm who is named as executor and as alternate.
• Gather proof of death and a list of the assets and debts, so the estate's value can be stated.
• List every beneficiary and their last known address, and note any who are minors or incapable.
• Ask beneficiaries who is willing to act, or whom they would nominate if the named people cannot.
• Speak to a lawyer about the bond, the forms and whether the OPGT route could be needed.

How any person who manages the incapable executor's affairs fits into the process depends on the situation, so it is worth confirming with a lawyer.

Frequently asked questions