What If the Named Executor Dies or Cannot Act in Saskatchewan?

A will names an executor to deal with the estate, but life does not always cooperate. The person named may have died before you, may be too ill to serve, or may simply say no. Where there is a will but the executor cannot or will not act, the court document is Letters of Administration with Will Annexed. What changes is who goes to court and which kind of court document is needed.

This article explains, in general terms, who can step in, how priority is set, and what the application looks like in Saskatchewan. Every estate is different, so use this as a map and confirm the details with a lawyer before filing.

This article covers the law of Saskatchewan.

Three kinds of court grant

In Saskatchewan the Court of King's Bench issues a grant that gives someone authority to deal with the estate. There are three kinds: Letters Probate, where the will names an executor; Letters of Administration, where there is no will; and Letters of Administration with Will Annexed, where there is a will but no executor is named, or the executor cannot or will not act.

So when the named executor has died, refuses or cannot serve, the usual route is Letters of Administration with Will Annexed. Because there is a will, the application is for Administration with Will Annexed, using Form 16-11B when the applicant is not the named executor. Exactly what the grant allows the new applicant to do in your situation is worth confirming with a lawyer.

Who can apply to replace the executor

Where there is a will but the applicant is not the named executor, the application is an Application for Grant of Administration with Will Annexed (Form 16-11B). Priority is set by section 10 of The Administration of Estates Act, starting with executors, then residuary beneficiaries, and working down to the official administrator.

A residuary beneficiary is someone who receives what is left after specific gifts and debts. Someone with prior or equal right to the grant who does not want to apply can sign a Renunciation of Administration (Form 16-26). If you think you might be next in line, or someone else is, a lawyer can confirm how the priority list applies to your family.

If there is no relative who can act, the Public Guardian and Trustee is the Official Administrator and the administrator of last resort. It acts where there is no next of kin or the next of kin cannot act, but it generally does not act on estates below $25,000 or where a relative is able to administer.

When the named executor is alive but does not want the job

A named executor is not forced to act. They can give up the right by signing a Renunciation of Probate (Form 16-16). Where someone with prior or equal right to the grant is not applying, a Renunciation of Administration (Form 16-26) is used.

If the named executor is simply unable, for example because of illness, the same grant of administration with will annexed applies. Whether an executor who has already started can be replaced depends on the facts, so get legal advice before assuming either way.

What the application usually involves

The forms depend on the situation, but the supporting paperwork can include several pieces.

• The application for the grant, which is Form 16-11B when the applicant is not the named executor.
• A Notice to Public Guardian and Trustee (Form 16-12, two copies) if any beneficiary is under 18 or a dependent adult.
• A Renunciation of Probate (Form 16-16) or Renunciation of Administration (Form 16-26) where they apply.
• An Administration Bond (Form 16-31), which may be required.

For a standard probate application, the court fees are a Local Registrar fee of $200 plus a levy of $7.00 per $1,000 (or portion thereof) of Total Part 1 Assets on the Statement of Property. Whether the same fees apply to an application for administration with will annexed is worth confirming with the court or a lawyer. For example, a Part 1 estate of $500,000 produces a levy of $3,500, plus the $200 fee. Fees may change, so confirm the current amounts with the court.

Do you need a grant at all?

Not every estate needs one. The only asset that absolutely requires probate is an interest in land, including mineral rights, registered solely in the deceased's name; for other financial assets, the bank or other institution decides whether it needs Letters, so the first step is to ask. Letters are required for any land transaction with Information Services Corporation (ISC) if the estate includes real estate.

Assets such as land held in joint tenancy with survivorship, accounts with survivorship, and life insurance or RRSPs with a named beneficiary pass outside probate. Letters may also not be required where the estate is $25,000 or less and includes no real property.

What to do next

• Find the original will and read who is named as executor and whether an alternate is named.
• Get a death certificate and list the assets, noting which include land.
• Ask the named executor, if able, whether they will act or sign a renunciation.
• Ask each bank or institution whether it needs Letters before it will release funds.
• List the beneficiaries, noting anyone under 18 or a dependent adult.
• Speak with a lawyer about who has priority and which forms apply.

Frequently asked questions