Is a Spouse Entitled to Be Executor in Ontario?

Being a surviving spouse does not always mean you are the one in charge of the estate. Who acts depends mainly on whether there is a will and who it names.

This article explains the usual position in Ontario with and without a will, how common-law partners are treated, and what options exist if the will names someone else.

If there is a will

When a will names an estate trustee (the executor), that person is the one chosen to act. Being the spouse does not by itself override that choice. Check who the will names and whether they are willing and able to act.

If a named estate trustee declines or cannot act, the beneficiaries may nominate another person to act as estate trustee. If you are a spouse and a beneficiary, you may be able to take part in that choice, so ask a lawyer how it applies to the will.

If there is no will

The deceased's spouse or common-law partner usually has the first right to apply for a certificate of appointment. After them, a close adult relative (child, parent, grandchild, sibling, nephew or niece) may apply, and the court may appoint the relative it considers most appropriate.

A bond is required with the probate application when the deceased died without a will, when the applicant was not named as estate trustee, or when the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country. A judge can order that no bond is required.

If the estate is valued at up to $150,000, a Small Estate Certificate can be applied for.

Common-law spouses

A common-law spouse may apply to administer the estate but does not inherit under the Succession Law Reform Act when there is no will. So you may have the right to act without having a right to a share. If you are in this position, get legal advice early, because other claims may be available depending on the facts.

If the will names someone else and you disagree

The Superior Court of Justice may remove a personal representative on any ground on which it may remove any other trustee, and may appoint a replacement. An application can be made by a co-executor, by an executor who wants to be relieved of the office, or by a person interested in the estate, such as a beneficiary.

Grounds for replacing a trustee include death, remaining out of Ontario for more than twelve months, wishing to be discharged, refusing to act, being unfit or incapable of acting, conviction of an indictable offence, and being bankrupt or insolvent. The Court of Appeal for Ontario has said that removing estate trustees chosen by the deceased is a serious matter.

Where the person removed is not the sole executor, the court need not appoint a replacement, and the estate may continue with the remaining personal representatives.

What to do next

• Find out whether there is a will and who it names.
• If there is no will, confirm your relationship and whether others share your priority.
• Check where the application would be filed, which is generally the court for the county or district where the deceased lived at death.
• Keep records of anything you have done for the estate.
• Speak to a lawyer before starting any court application or objecting to the named executor.

Frequently asked questions