Executor Won't Apply for Probate in Ontario: Forcing a Decision

You are a beneficiary, and the person named as executor in the will has done nothing. They have not applied for probate, and they have not stepped aside either. Meanwhile the bank, the house and the paperwork are all waiting.

Ontario law gives you several ways to protect your position and to push for a decision. This article walks through them in order, from the lightest step to a court motion, and explains what happens once someone else has to take over. It is general information, and the right step depends on your facts.

A named executor is not obliged to act

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

The difficulty is the in-between state. Whether anyone else can act while the named person stays silent depends on the facts, so it is worth confirming with a lawyer. The tools below are aimed at ending that limbo.

Step one: protect yourself with a request for notice

Anyone with a financial interest in the estate may file a request for notice on Form 74P at any time before a certificate is issued. It expires three years after filing and can be renewed. What a request for notice does once filed depends on the court process, so it is worth confirming with a lawyer.

This does not make the executor act. It is a low-cost safeguard while you decide whether to go further. Court fees can change from time to time, so it is worth confirming the current amount with the court office before you file.

Step two: ask the court to require a decision

There are two court routes aimed directly at a stalling executor.

• Under Estates Act s. 24, 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.

Both routes ask the court to push the executor toward a decision, but what the court orders and what happens next depend on the facts, so it is worth confirming with a lawyer. This article does not set a deadline for how long an executor can wait before you act, or say when it becomes too late for them to renounce. Those questions turn on court decisions and the facts, so a lawyer should confirm them for your situation.

If the executor renounces

A renunciation is made on Form 74G (Part A). Under Estates Act s. 34, an executor who renounces probate loses all rights as executor, and the estate passes as though that person had never been named.

Who steps in next depends on the situation:

• Beneficiaries may nominate someone else to act.
• If a named executor refuses to prove the will, Estates Act s. 29 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.

A common-law partner does not inherit under the Succession Law Reform Act when there is no will, but s. 29 still allows a common-law partner to be granted administration. Being appointed and inheriting are separate questions.

What a replacement needs: consents, bonds and residency

A consent to someone else's appointment is made on Form 74G (Part B). Rule 74.04(1) also requires renunciations from people entitled to act who are not joining the application.

A person granted administration must give a bond to the judge of the court making the grant. The bond is generally for double the sworn value of the estate, but the judge may reduce it or dispense with it. Ontario guidance says a bond is required if the applicant was not named as estate trustee, among other cases. Personal sureties must be adult Ontario residents: two if the estate is over $100,000, one if it is $100,000 or less.

Residency matters too. Letters of administration cannot be granted to someone who does not live in Ontario, except when a grant is resealed under s. 52.

What to do next

• Gather the will, any codicils and a list of the estate's assets and who has a financial interest.
• File a request for notice on Form 74P if you have not already.
• Write to the executor and ask for a clear answer: apply or renounce.
• If there is still no answer, speak to a lawyer about a motion under Rule 74.15(1)(a) or a summons under Estates Act s. 24.
• If the estate is deadlocked on some other question, any person with a financial interest may apply or move for directions under Rule 75.06.
• Talk with the other beneficiaries about whom to nominate, and who could post the bond and sureties.

Frequently asked questions