Named Executor Won't Act or Apply for Probate in Ontario: Your Options

A will names an executor, but months have gone by and nothing has happened. No application for probate has been filed, and the person named will not say whether they intend to act. Meanwhile the bank, the land registry or the beneficiaries are all waiting.

Ontario law gives you tools to break that kind of stalemate. This article explains how a named executor can be pushed to decide, what happens if they say no, who can step in, and what you can do to protect yourself in the meantime.

A named executor does not have to act

Being named in a will does not force anyone to take the job. Ontario government guidance says a person named in a will does not have to act as estate trustee, and if the named person declines or cannot act, the beneficiaries may nominate someone else.

The problem is the in-between state: the person has not accepted, has not declined, and is not moving. Until they decide, the estate can be stuck. The law has specific ways to end that uncertainty.

Forcing the executor to decide

Under section 24 of the Estates Act, the court may summon a named executor to prove the will or to refuse to prove it. Separately, under Rule 74.15(1)(a), anyone with a financial interest in the estate may bring a motion for an order requiring a person to accept or refuse appointment as estate trustee with a will.

The rule turns on having a financial interest in the estate. Whether you qualify, and how to frame the motion, depends on your situation, so it is worth confirming with a lawyer before filing.

• Gather a copy of the will and any proof of your interest in the estate.
• Keep a record of your attempts to get an answer from the executor, such as emails and letters.
• Ask the executor in writing to accept or refuse by a reasonable date before going to court.

If the executor refuses or renounces

An executor who renounces probate loses all rights as executor under section 34 of the Estates Act, and the estate then passes as though that person had never been named. A renunciation is made on Form 74G (Part A). Rule 74.04(1) requires renunciations from people entitled to act who are not joining the application.

Once the named executor is out of the way, the beneficiaries may nominate someone else. A consent to another person's appointment is made on Form 74G (Part B).

If the named executor refuses to prove the will, section 29 of the Estates Act 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.

Whether a renunciation is still possible after someone has already started dealing with the estate is a separate question that depends on the facts, and a lawyer can advise on it.

Bonds and who cannot be appointed

A person granted administration must give a bond to the judge of the court making the grant. The bond is generally for double the sworn value of the estate, though the judge may reduce it or dispense with it. Ontario guidance says a bond is required if the applicant was not named as estate trustee, if there is no will, or if the applicant lives outside Ontario, another Canadian province or territory, or a Commonwealth country.

Personal sureties must be adult Ontario residents: two if the estate is over $100,000, and one if it is $100,000 or less.

For reference, the prescribed small-estate amount under the Estates Act is $150,000, and estates of that value or less can apply for a Small Estate Certificate.

There is also a residency limit. Letters of administration cannot be granted to a person who does not live in Ontario, except when a grant is resealed under section 52. If the family member best placed to step in lives outside Ontario, that may affect who can apply.

Protecting yourself while you wait

Someone with a financial interest may file a request for notice (Form 74P) at any time before a certificate is issued. It expires three years after filing and can be renewed. Whether this step is useful in your situation depends on the facts, so it is worth confirming with a lawyer.

Any person with a financial interest may also apply for directions (Form 75.5) or move for directions (Form 75.6) under Rule 75.06.

If the executor has already been appointed and is neglecting the job, the Superior Court of Justice may remove a personal representative on any ground that would justify removing another trustee, and it may appoint new or replacement trustees.

• File a request for notice (Form 74P) if you have a financial interest.
• Ask the executor in writing for a decision.
• Consider a motion to require acceptance or refusal.
• If already appointed and not performing, ask a lawyer about removal.

What to do next

Start by writing to the named executor and asking for a clear answer by a set date. Keep copies. If that fails, speak with a lawyer about which step fits: a motion to force a decision, an application for directions, or removal.

• Collect the will, a death certificate and a list of the estate's known assets.
• Identify everyone with a financial interest, including family members who could act instead.
• Check whether any beneficiary is a minor or incapable, since that affects bonds and notice.
• Talk to a lawyer before filing anything with the court.

Frequently asked questions