- A named executor is not required to act, and where no trustee can act the court appoints one.
- Applicants who are not the named trustee generally need a bond, usually double the estate's value unless a judge orders otherwise.
- The Public Guardian and Trustee is a last resort only, and only if strict conditions are met.
- Check the will for an alternate executor before assuming a court appointment is needed.
Wills often name one person to be executor, and sometimes that person dies first. If there is no alternate, the family is left with a valid will and nobody with authority to carry it out.
The route forward is a court appointment. This article explains in plain language how that generally works in Ontario, what the court will want, and when to get legal advice.
What happens when the executor cannot act
A named estate trustee is not required to act. If they decline or cannot act, beneficiaries may nominate someone else, and the court appoints a trustee where there is no will, no named trustee, or the named trustee asks the court to confirm the will.
First, read the will closely. It may name an alternate or substitute executor, and if it does, that person is the natural one to apply. If it does not, you will be asking the court to appoint someone. Wording can be tricky, so a lawyer can help you confirm what the will actually provides.
Early checks before you apply
- Find the original will. Ways to look include contacting the deceased's lawyer, relatives or friends, searching online will registries, or checking court records at the Ontario courthouse nearest the deceased's home.
- Check whether anyone has already been appointed by contacting the court office where the deceased lived or held property.
- Gather death certificates and a list of assets, debts and beneficiaries.
- Ask each bank or financial institution whether it requires a certificate.
If the deceased lived outside Ontario but owned Ontario property, contact the courthouse where the property is located.
Who can come forward
Beneficiaries may nominate a person to act. In estates without a will, the spouse or common-law partner has first right to apply, followed by a close adult relative, and the court may choose the most appropriate one. That ranking is written for estates without a will, so with a will whose executor has died, who should apply depends on the facts and is worth confirming with a lawyer.
| Possible applicant | Points to know |
|---|---|
| Alternate executor named in the will | The natural choice if the will names one; check the will's wording |
| Person nominated by the beneficiaries | Beneficiaries may nominate someone when the named trustee cannot act |
| Public Guardian and Trustee | Last resort only, and only if criteria are met |
The court application, bond and the Public Guardian and Trustee
The application goes to the Superior Court of Justice in the county or district where the deceased lived, by mail or by email under the court's practice direction. The main forms are the application (Form 74A), an affidavit of service (Form 74B) and an affidavit about the will (Form 74D, 74E or 74F), with a draft certificate (Form 74C). A signed copy of the application must be sent to all estate beneficiaries before filing.
A person applying who is not the named trustee needs a bond. It is generally double the estate's value unless a judge orders otherwise, and a judge can decide a bond is not required. Two sureties are needed for estates over $100,000 and one for $100,000 or less.
The Public Guardian and Trustee may act as estate trustee of last resort only if the deceased was an Ontario resident or owned Ontario real estate, the executor has died or become incapable (or there is no will), no suitable next-of-kin in Ontario is available, and the estate meets its financial criteria. You can contact them at 1-800-891-0504 or OPGTEstatesAdmin@ontario.ca.
Cost and timing
Estate administration tax is $15 for every $1,000 of estate value for applications on or after January 1, 2020, with the first $50,000 exempt. Estates of $50,000 or less pay no tax, but the representative must still apply and file the Estate Information Return. The government's example is a $240,000 estate owing $2,850.
Ontario says applications are typically processed within 15 business days, though it takes longer if documents are missing or a judge must decide an issue. The Estate Information Return is due within 180 calendar days after the certificate is issued.
What to do next
- Read the will for any alternate or substitute executor.
- Confirm no one has already been appointed.
- Talk with the beneficiaries about who is willing and suitable to act.
- Collect the asset list and the documents each institution needs.
- Book time with a lawyer to confirm who applies, the bond question and the forms.
Frequently asked questions
Does the estate have to go to court if the executor died first?
If the deceased owned real property or assets held by a financial institution, the estate normally has to be probated. Where no trustee can act, the court appoints one.
Can the beneficiaries choose the new estate trustee?
Beneficiaries may nominate someone else when the named trustee cannot act, and the court makes the appointment.
Will the new trustee need a bond?
Generally yes if the applicant is not the named trustee. The bond is usually double the estate's value unless a judge orders otherwise.
When does the Public Guardian and Trustee get involved?
Only as a last resort, if conditions such as no suitable next-of-kin in Ontario and meeting its financial criteria are met.
Sources
- Ontario.ca – Estate Administration Tax — ontario.ca
- Ontario.ca – Administering estates — ontario.ca
- Ontario.ca – Apply for probate — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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