What If the Named Executor Is Unable or Unwilling to Act in Ontario?

Sometimes the person named in a will as executor has died, does not want the job, or is no longer able to manage it. In Ontario the formal title is estate trustee, and the estate cannot simply stall while you wait.

This article explains who may step in and what the process generally involves. The right route depends on the will and the family, so it is worth confirming your next move with a lawyer.

Why the estate trustee matters

Estate trustees wind up the deceased's affairs, pay taxes, bills and other debts, collect the estate assets, and distribute the residue to those entitled to it. An estate normally must be probated if the deceased owned real property, or assets held by a financial institution, in their own name. Without a trustee with court-confirmed authority, those tasks can be blocked.

If the named trustee declines or cannot act

If the estate trustee named in a will declines or cannot act, the beneficiaries may nominate another person. The application itself can include renunciations or consents, which use Form 74G in the cases that need them.

Ordinarily, if there is a will, the estate trustee named in it applies. When that person is out of the picture, the court may appoint the most appropriate relative. How your situation fits depends on the wording of the will, so ask a lawyer to review it.

If there is no will or no one suitable

If there is no will, the married spouse or common-law partner usually has first right to apply, followed by a close adult relative. Be aware that under the Succession Law Reform Act, a common-law spouse does not inherit if there is no will. Having the right to apply is not the same as being entitled to inherit.

Bonds and other requirements for a replacement

A person who steps in often was not named in the will, and that matters. A bond is required when the deceased died without a will, when the applicant was not named as estate trustee in the will, or when the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country. The bond is generally twice the estate's value unless a judge orders otherwise, and a judge can decide on a motion to waive it.

• Small estates: under the Estates Act, no bond is required for a small estate unless a beneficiary is a minor or is incapable, subject to the rules for non-residents.
• Spouse applying with no will: where there are minor or incapable adult beneficiaries, a bond is needed unless the applicant is the deceased's spouse and has filed an affidavit asking the court to dispense with it.
• Beneficiaries who are minors or incapable adults: notice may also have to go to the Office of the Children's Lawyer or the Office of the Public Guardian and Trustee.

When there is a dispute

If a will's validity is being fought in court, the Superior Court of Justice can appoint an administrator while the action is pending. This person, called an estate trustee during litigation, has general powers except distributing the residue and is under the court's direct control.

What to do next

• Get the original will and confirm exactly who is named and whether alternates are listed.
• Find out in writing whether the named person is declining or truly cannot act.
• Talk with the other beneficiaries about who could be nominated.
• Gather proof of death and the court forms the application needs.
• Speak with a lawyer about bonds, notices and any dispute before filing.

Frequently asked questions