- An interested party can give the named executor(s) thirty days' notice requiring them to take out probate, and if they still do not, letters of administration with the will annexed may be granted instead.
- The person seeking that grant applies by petition to the Supreme Court's Estates Section under Rule 65, using Form 65B.
- The deceased's tax obligations and the need to check for a CRA clearance certificate do not pause while the estate is stalled.
A loved one has died, there is a will, and the person named as executor is doing nothing. Maybe they are overwhelmed, maybe they are avoiding the job, or maybe they simply have not responded. Meanwhile, the beneficiaries are waiting and the estate cannot move forward.
Prince Edward Island law has a route for this situation. This article explains how it generally works, what the court paperwork involves, and which deadlines keep running in the background. Every estate is different, so a lawyer can confirm how this applies to yours.
This article covers the law of Prince Edward Island.
Who can act when the named executor does nothing
When there is a will and an executor who takes on the role, the court issues Letters Probate on Form 65U. When there is a will but no executor acts, the court issues Letters of Administration with the Will Annexed on Form 65W instead.
The Probate Act sets out a way to get from the first situation to the second. If the named executor(s) fail to take out probate after thirty days' notice requiring them to do so has been given by an interested party, letters of administration with the will annexed may be granted instead.
The Probate Act refers to an interested party giving that notice. Whether you qualify depends on your situation, so confirm this before you rely on it.
The notice step
The notice is the starting point. It is a notice, given by an interested party, requiring the named executor(s) to take out probate. The Probate Act ties the later grant to thirty days having passed after that notice has been given.
- Put the notice in writing and keep a copy.
- Record how and when it was delivered to each named executor.
- Send it to every executor named in the will, not only the one who seems most responsible.
- Keep any replies, including a refusal, since they may matter later.
What the notice means for your particular estate depends on the facts, so it is worth confirming with a lawyer. It is the step that allows a different grant to be considered if the executor still does not act.
If the executor still does not act: applying for a grant
An application for probate or letters of administration is made to the Supreme Court's Estates Section by petition under Rule 65. The prescribed forms include Form 65B, the Petition for Administration with will annexed.
Under Rule 65.11, the petition must state the date of death, the deceased's marital status, and the name, age and address of each child. Gather that information early, because gaps tend to slow an application down.
If the court grants the petition, the document that issues is Letters of Administration with the Will Annexed on Form 65W. Rule 65 does not cover every procedural question. Where the Probate Act and Rule 65 are silent, the general Rules of the Supreme Court apply to Estates Section proceedings.
| Situation | Petition | Grant |
|---|---|---|
| Executor acts on the will | Form 65A, Petition for Probate | Letters Probate, Form 65U |
| Will exists but no executor acts | Form 65B, Petition for Administration with will annexed | Letters of Administration with the Will Annexed, Form 65W |
When the executor steps aside or no one is available
Sometimes the executor does not want the job. A named executor may decline the role by filing a renunciation of probate or of administration on Form 65K. A formal renunciation gives everyone clarity, which a silent executor does not.
If there is no one entitled or willing to administer an estate at all, the Provincial Administrator of Estates Act governs the role of the Provincial Administrator. Whether that office could become involved in a particular estate depends on the facts, and a lawyer can advise you on it.
Duties that keep running while things are delayed
Delay in the court process does not stop the tax clock. The final T1 return is generally due April 30 of the following year if death occurred between January 1 and October 31. If death occurred between November 1 and December 31, it is due six months after the date of death. Any balance owing is payable by the same date unless noted otherwise.
- If the deceased or their spouse or common-law partner carried on a business, the final return is due June 15 for deaths from January 1 to December 15, though any balance is still due April 30.
- For a death from December 16 to 31 in that business situation, the return is due six months after death.
- If the person died early in the year before filing the prior year's return, that return is due six months after the date of death.
The legal representative should also determine whether a CRA clearance certificate is needed before distributing any property of the estate. This is one more reason beneficiaries should not push for early payouts while the estate is unsettled.
What to do next
- Find the original will and confirm who is named as executor.
- Check whether anyone has already applied or renounced.
- Write down the date of death, the deceased's marital status, and the name, age and address of each child.
- Decide whether you are an interested party, and ask a lawyer to confirm.
- Give written notice to the named executor(s) and record the date.
- Note the tax dates above and ask an accountant or lawyer about the final return.
- Speak with a lawyer before filing a petition with the Estates Section.
Frequently asked questions
How long does the executor have after I give notice?
Under the Probate Act, the question is whether the named executor(s) fail to take out probate after thirty days' notice requiring them to do so has been given by an interested party. If they do not, letters of administration with the will annexed may be granted instead.
Can the executor just say no?
Yes. A named executor may decline the role by filing a renunciation of probate or of administration on Form 65K. If an executor simply stays silent instead, the thirty-day notice route under the Probate Act may apply.
Which court handles this?
Applications are made by petition to the Supreme Court's Estates Section under Rule 65. If the Probate Act and Rule 65 are silent on a point, the general Rules of the Supreme Court apply.
Do tax filings wait until a new administrator is appointed?
No. The final T1 return has its own due dates, which depend on the date of death and whether a business was carried on. A legal representative should also check whether a CRA clearance certificate is needed before distributing property.
Sources
- PEI Supreme Court – Rule 65 Estates of Deceased Persons — courts.pe.ca
- PEI Supreme Court – Form 65D Executor's Oath — courts.pe.ca
- PEI Supreme Court – Form 65U Letters Probate — courts.pe.ca
- Probate Act, RSPEI 1988, c P-21 — princeedwardisland.ca
- PEI Supreme Court – Form 65K Renunciation — courts.pe.ca
- Provincial Administrator of Estates Act, RSPEI 1988, c P-23 — princeedwardisland.ca
- CRA – Filing and payment due dates (someone who died) — canada.ca
- CRA – Doing taxes for someone who died — canada.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
A single will with us is from $631.35, tax included. Third-party fees are extra.