Named Executor Won't Act? Forcing a Decision in Ontario

The will names an executor, but months have passed and nothing is happening. The person will not apply for probate, and will not formally step aside either. Meanwhile bills, property and beneficiaries are all waiting.

This article explains how a named executor can step aside, how the court can push a reluctant executor to decide, and how a replacement can be put in place. The details depend on your family and the estate, so a lawyer can confirm the best route.

No one has to act as estate trustee

Being named in a will does not force anyone to take on the job. 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.

An executor is also called an estate trustee with a will. The practical problem is rarely that the person is unwilling. It is usually that they will not say so clearly, which leaves everyone stuck.

How a named executor renounces

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

Rule 74.04(1) also requires renunciations from people who are entitled to act but are not joining the application. So even a person who simply wants to stay out of it may need to sign the form before a replacement can apply.

Someone who is considering renouncing should think carefully first, because the effect is that they lose all rights as executor. They may wish to speak to a lawyer before signing.

If the executor will not decide

There are two court routes for forcing a decision. 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.

• Who can ask: for a motion under Rule 74.15(1)(a), a person with a financial interest in the estate, such as a beneficiary.
• What you are asking for: an order that the named executor either accept the role or refuse it.
• What it is not: a way to choose the replacement. That is dealt with afterward.

A request for notice (Form 74P) is a separate tool. A person with a financial interest may file it at any time before a certificate is issued, and it expires three years after filing unless renewed.

After a refusal: who can take over

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. The beneficiaries may also nominate someone.

Where there is no will at all, Ontario guidance says a spouse or common-law partner generally has the first right to apply, followed by close adult relatives (a child, parent, grandchild, sibling, nephew or niece), and the court may appoint whichever relative it considers most appropriate. When a named executor has refused, the court's choice under s. 29 is the rule that applies.

There is an exception for people who live outside Ontario. Under Estates Act s. 5, letters of administration cannot be granted to a person who does not live in Ontario, except when a grant is resealed under s. 52. A nominee who lives elsewhere may therefore not be a workable choice.

Consents, renunciations and the bond

The replacement applicant files the usual probate package, which includes Form 74A, the original will and codicils, proof of death, renunciations and consents on Form 74G, and a bond (Form 74L or 74M) where required. A consent to someone else's appointment is made on Form 74G (Part B). The application and affidavits must be signed before a Commissioner for taking affidavits.

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. One exception is a surviving spouse on an intestacy: under Estates Act s. 36(2), no bond is required when an intestate estate is granted to the surviving spouse, the net value is within the preferential share, and an affidavit of debts is filed. Otherwise, under Estates Act s. 37(1) the bond is generally for double the sworn value of the estate, but under s. 37(2) the judge may reduce it or dispense with it.

Personal sureties must be adult Ontario residents: two if the estate is over $100,000, and one if it is $100,000 or less. There are also exceptions for small estates, which generally need no bond unless a beneficiary is a minor or incapable.

What to do next

• Ask the named executor in writing to apply or to renounce, and keep a copy.
• List who has a financial interest in the estate and who would be willing to act.
• If there is no clear answer, speak with a lawyer about a motion under Rule 74.15(1)(a) or a summons under s. 24.
• Gather the death certificate, the original will and a list of beneficiaries.
• Prepare for questions from the court: the registrar may ask for further information, and missing documents can be supplied when court staff ask for them.

Applications are typically processed within 15 business days, though the registrar must refer applications that raise issues to a judge. A lawyer can tell you which steps fit your situation.

Frequently asked questions