Executor of a Will in Ontario: Who Can Act and How to Start

You have been named as executor in someone's will, or you think you may be. The role carries real responsibility, and many people are unsure whether they qualify, whether they can refuse, and what to do first.

This article explains, in plain words, who can act as an executor in Ontario, what the choice to act or decline involves, and the early steps that usually matter most. It is general information, not advice on your situation.

What an executor actually does

In Ontario the executor is one kind of estate trustee, the person who deals with the deceased person's property. Their duties include finding the will, winding up the deceased's affairs, paying taxes, bills and other debts, and distributing what remains to those entitled.

If the deceased had a continuing power of attorney for property, that document ends when the grantor dies. From the date of death, the estate trustee named in the will, not the attorney, deals with the deceased's property.

Who can act, and do you have to?

A person named as estate trustee in a will does not have to act. If the named person declines or cannot act, the beneficiaries may nominate another person.

Formally giving up the role is called renouncing. When a named executor renounces probate, their rights as executor wholly cease, and administration proceeds as if they had never been appointed. A probate application must include a renunciation (Form 74G) from every living person named in the will as estate trustee who has not joined the application.

You may also be pressed to decide. Any person with a financial interest may move for an order requiring a named person to accept or refuse appointment as estate trustee.

Where you live can matter too. Letters probate may not be granted to a person who lives outside Ontario and outside the Commonwealth unless they give the same security an administrator would, or a judge dispenses with or reduces it in special circumstances.

Stepping down after you have started

Declining is simple before you act. Quitting afterwards is not. The Trustee Act's out-of-court retirement procedure does not apply to executors or administrators, so an estate trustee who wants to step down after acting generally needs a court order, for example under s. 5 (appointing new trustees) or s. 37 (removal and replacement).

The Superior Court of Justice may also remove an estate trustee on any ground on which it may remove any other trustee, and appoint another proper person in their place. This is why it is worth deciding early whether you are willing and able to see the job through.

First steps once you decide to act

• Locate the original will and confirm who else is named as estate trustee.
• Decide whether you will act or renounce, and sign a renunciation if you are declining.
• Start a clear record of every asset and every transaction from day one.
• Gather information on the deceased's assets and debts so you can apply for probate.
• Keep estate expenses documented. A trustee may pay a proper expense from trust property, or pay it personally and recover the same amount, but the court can later disallow an expense that was not properly incurred.

Probate has deadlines and costs. Within 180 calendar days of receiving a certificate of appointment, the estate trustee must file an Estate Information Return with the value of the deceased's assets at death. For applications made on or after January 1, 2020, no Estate Administration Tax is payable if the estate is $50,000 or less, and above that the tax is $15 for each $1,000 (or part) over $50,000.

Pay, taxes and what to do next

An estate trustee is entitled to a fair and reasonable allowance for the care, pains, trouble and time spent on the estate, as allowed by a judge of the Superior Court of Justice. That does not apply where the will itself fixes the allowance. Executor's fees are taxable income to the person who receives them.

Before you distribute anything, the legal representative must make sure the deceased's tax returns are filed and any balance owing is paid, and should apply for a clearance certificate, as needed, before distributing any assets. A legal representative who distributes property without a clearance certificate is personally liable for unpaid tax, up to the value of the assets distributed.

A sensible next step is to read the will carefully, list what you know about assets and debts, and speak with an estate lawyer before you accept or sign anything. A lawyer or accountant can confirm how these rules apply to your estate.

Frequently asked questions