Named Executor Won't Apply for Probate in Ontario: Your Options

A will names an executor, but months later nothing has happened. No application has been filed, the person does not return calls, and the bank and the land registry are waiting for paperwork. Beneficiaries often feel stuck because the named person has neither started nor formally stepped aside.

In Ontario you are not without options. This article explains what the named person is allowed to do, how the court can force a decision, who can step in afterwards, and what a replacement applicant should expect. It does not cover removing an executor who is already acting. Your own facts matter, so a lawyer can confirm the best route.

A named executor does not have to act

Being named in a will is an invitation, not an obligation. Ontario government guidance says a person named in a will does not have to act as estate trustee, and that if the named person declines or cannot act, the beneficiaries may nominate someone else.

The difficulty is silence. Until the named person either applies or formally steps aside, it can be hard for anyone else to move forward. Where the deceased owned real property or assets held by a financial institution, the estate normally has to be probated. The estate can therefore sit still while the person delays.

Renunciation: the clean way out

The tidy solution is for the named person to renounce. Under section 34 of the Estates Act, an executor who renounces probate loses all rights as executor, and the estate then passes as though that person had never been named.

A renunciation is made on Form 74G (Part A). Rule 74.04(1) requires renunciations from people who are entitled to act but are not joining the application.

If you are on good terms with the named person, a simple, polite request to sign the form is often the fastest path. A lawyer can explain the effect to the person signing before they do, because renouncing is not something to do casually.

Forcing a decision through the court

If the named executor will neither apply nor renounce, the court has tools. Under section 24 of the Estates Act, the court may summon a named executor to prove the will or refuse to prove it. Under Rule 74.15(1)(a), anyone with a financial interest may bring a motion for an order requiring a person to accept or refuse appointment as estate trustee with a will.

Whether a motion is the right step depends on the facts, so it is worth getting advice before filing.

Who can step in afterwards

Once the named executor refuses, or if there is no will, section 29 of the Estates Act lets the court grant administration to the deceased's spouse or common-law partner, to the next of kin, or to both, as it thinks best. Where several next of kin are equally related, the court may choose one or more of them.

Ontario guidance describes a similar order of priority when there is no will: a spouse or common-law partner generally has the first right to apply, then close adult relatives such as a child, parent, grandchild, sibling, nephew or niece, and the court may appoint whichever relative it considers most appropriate.

Beneficiaries can also nominate someone. A consent to someone else's appointment is made on Form 74G (Part B). Where there is no will, Rule 74.04(1) requires consents (Form 74G) from beneficiaries who together hold a majority interest in the value of the estate's assets at the date of death. Which consents apply in your situation depends on the facts, so it is worth confirming with a lawyer.

There is one restriction. Letters of administration cannot be granted to a person who does not live in Ontario, except when a grant is resealed under section 52 of the Estates Act. A beneficiary living elsewhere may therefore need to nominate someone who lives here.

What a replacement applicant should expect

A replacement who was not named in the will generally has to post a bond. Under section 35 of the Estates Act, a person granted administration must give a bond to the judge, and under section 37(1) it is generally for double the sworn value of the estate. Under section 37(2), the judge may reduce the bond or dispense with it.

Ontario guidance says a bond is required if there is no will, if the applicant was not named as estate trustee, or if the applicant lives outside Ontario, another Canadian province or territory, or a Commonwealth country. Personal sureties must be adult Ontario residents: two if the estate is over $100,000, one if it is $100,000 or less.

There are exceptions. No bond is required for a small estate unless a beneficiary is a minor or is incapable within the meaning of section 6 of the Substitute Decisions Act, 1992. The small-estate amount is $150,000. A separate exception applies to a surviving spouse on an intestacy when the net value is within the preferential share and an affidavit of debts is filed.

• Ask early whether the judge may be asked to reduce or waive the bond.
• Identify potential personal sureties who are adult Ontario residents.
• Check whether any beneficiary is a minor or incapable, since that can bring the bond back for a small estate.

Protecting your interest and next steps

While you wait, a person with a financial interest may file a request for notice (Form 74P) at any time before a certificate is issued. It expires three years after filing and can be renewed.

• Write to the named executor and ask for a clear decision, keeping a copy of your message.
• Ask whether they will sign a renunciation on Form 74G (Part A).
• Find the original will and confirm who is named.
• Agree among the beneficiaries on who should apply, and gather consents on Form 74G (Part B).
• File a request for notice on Form 74P if you want to be told of any application.
• If the named person stays silent, speak to a lawyer about a motion under Rule 74.15(1)(a).

Frequently asked questions