- A person named as estate trustee in a will does not have to act.
- A named executor who lives outside Ontario and outside the Commonwealth generally needs a bond unless a judge dispenses with or reduces it.
- An executor who has already started acting generally needs a court order to step down.
Being named executor in a will is an invitation, not an obligation. Questions also come up about whether a particular person is able to act, such as someone who is young, ill, in financial trouble or living far away.
Personal qualifications such as age, capacity and bankruptcy depend on the facts and are worth confirming with a lawyer. This article covers the rules that are clear: declining the role, living outside Ontario, bonds, stepping down and removal.
What an executor is expected to do
Estate trustee duties include finding the will, winding up the deceased's affairs, paying taxes, bills and other debts, and distributing what remains to those entitled. Estate trustees must also keep accurate records of the assets and transactions.
If someone had a continuing power of attorney for property, that authority ends when the grantor dies. From the date of death, the estate trustee named in the will deals with the deceased's property, not the attorney.
Declining or renouncing the role
A person named as estate trustee does not have to act. If the named person declines or cannot act, the beneficiaries may nominate another person.
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.
If a named person does not say whether they will act, any person with a financial interest may move for an order requiring them to accept or refuse the appointment.
Living outside Ontario and bonds
Letters probate may not be granted to a person who lives outside Ontario and outside the Commonwealth unless they give the same security (bond) an administrator would, or a judge dispenses with or reduces it in special circumstances. For a named executor, a bond is needed only when the applicant does not live in Ontario, another province or territory, or a Commonwealth country.
Administration is different. Letters of administration may not be granted to a person not residing in Ontario, except when resealing letters under s. 52 of the Estates Act. Every person granted administration, including administration with the will annexed, must give a bond with any sureties the judge requires.
| Bond rule | Detail |
|---|---|
| Amount | Double the sworn value of the estate; a judge may reduce or dispense with it in special circumstances |
| Small estates | No bond unless a beneficiary is a minor or incapable, and still subject to the outside-Commonwealth rule |
| Surviving spouse on intestacy | No bond if the net estate does not exceed the preferential share and an affidavit of debts is filed |
| Form of bond | Licensed insurer (Form 74L) or personal sureties (Form 74M) |
A personal surety must be an Ontario resident who is not a minor, and one personal surety is enough if the estate's assets do not exceed $100,000. An applicant may ask to dispense with or reduce the bond, or limit security to Ontario assets, and where all persons entitled to share consent and none is a minor or an incapable person without a guardian or attorney, this can be done without a motion.
Living abroad can also affect tax. An estate resides for tax purposes where its central management and control actually takes place, and an executor managing from abroad can affect that. Cross-border executors should get tax advice.
Stepping down, removal and disagreements
The Trustee Act's out-of-court retirement procedure does not apply to executors or administrators. An estate trustee who wants to step down after acting generally needs a court order, for example under s. 5 or s. 37.
The Superior Court of Justice may remove an estate trustee on any ground on which it may remove any other trustee, and appoint another proper person in their place. Co-executors who disagree can apply to the court for its opinion, advice or direction without starting an action. A trustee who follows that direction is treated as having discharged their duty, unless there was fraud, wilful concealment or misrepresentation.
Where two or more trustees hold joint powers, the survivor or survivors may exercise them. Any person who appears to have a financial interest in an estate may apply to court for directions, and the court may set the issues to be decided and may appoint an estate trustee during litigation.
What to do next
- If you are named, decide early whether you want to act, and do not start dealing with estate property until you have decided.
- If you do not want the role, ask a lawyer about renouncing before you take any steps as executor.
- If you live outside Ontario, find out whether a bond or tax residence issue applies to you.
- If you doubt that a named person can act, because of age, capacity, bankruptcy or conflict, get legal advice on the facts.
- Keep clear records from the first day.
Frequently asked questions
Do I have to act if I am named executor?
No. A person named as estate trustee does not have to act, and if they decline or cannot act, the beneficiaries may nominate another person. A renunciation is filed with the probate application.
Can an executor who lives in another province act?
Ontario.ca states that a bond is needed for a named executor only when the applicant does not live in Ontario, another province or territory, or a Commonwealth country. A judge may still dispense with or reduce a bond in special circumstances.
Can I quit as executor after I have started?
Generally you need a court order, because the Trustee Act's out-of-court retirement procedure does not apply to executors or administrators. Speak with a lawyer about how to proceed.
Can an executor be removed?
Yes. The Superior Court of Justice may remove an estate trustee on any ground on which it may remove any other trustee, and appoint another proper person.
Sources
- Substitute Decisions Act, 1992, s. 12(1)(f) — Ontario e-Laws
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 74.17(1) — Ontario e-Laws
- Ontario.ca – Administering estates — ontario.ca
- Estates Act, s. 34 — Ontario e-Laws
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Trustee Act, ss. 2(2), 5(1) — Ontario e-Laws
- CRA Income Tax Folio S6-F1-C1, Residence of a Trust or Estate — canada.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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