Named as Executor but Don't Want the Job? Renouncing in Ontario

Being named as executor in someone's will can feel like an obligation, especially during a loss. The job can involve paperwork, deadlines and responsibility, and some people are not able or willing to take it on.

In Ontario you have a choice. This article explains what renouncing means, how it is done, who can take over, and what happens if a named executor will not decide either way.

You do not have to act

Ontario government guidance says a person named in a will does not have to act as estate trustee. If the named trustee declines or cannot act, the beneficiaries may nominate someone else.

Estate trustee is the formal Ontario term for an executor. Many people use the two words to mean the same thing, and this article does too.

What renouncing does

Under s. 34 of the Estates Act, an executor named in a will who renounces probate loses all rights as executor. The estate then passes as though that person had never been named.

In plain terms, renouncing is a clean exit. You give up the role completely, so think it over before you sign. If you are unsure, a lawyer can explain how it applies to your situation.

How to renounce: Form 74G

A renunciation is made on Form 74G (Part A). A consent to someone else's appointment is made on Form 74G (Part B). The two parts do different things, so make sure you are completing the right one.

• Part A: you give up your right to act as executor.
• Part B: you consent to another person being appointed.

The reason this matters is that Rule 74.04(1) requires renunciations from people who are entitled to act but are not joining the application. Without it, the court file may be incomplete.

Who steps in after you

If the will names an alternate, that person may be able to act. If not, the beneficiaries may nominate someone else.

Where a named executor refuses to prove the will, or there is no will, s. 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.

There is a limit. Letters of administration cannot be granted to a person who does not live in Ontario, except when a grant is resealed under s. 52.

A replacement who was not named in the will may need to give a bond. Ontario guidance says a bond is required if there is no will, if the applicant was not named as estate trustee, or if the applicant lives outside Ontario, another Canadian province or territory, or a Commonwealth country. Under s. 37(1) of the Estates Act the bond is generally for double the sworn value of the estate, but under s. 37(2) the judge may reduce it or dispense with it.

When a named executor will not decide

Sometimes a named executor neither acts nor renounces, and the estate stalls. There are two tools for this.

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

If you are named and want to avoid being pulled into court, deciding promptly and, if you decline, signing the renunciation is the simpler path.

What to do next

• Decide whether you can and want to act, remembering that you are free to say no.
• Do not sign a renunciation until you understand that it ends your role as executor.
• If you are renouncing, complete Form 74G (Part A) and give it to whoever is applying.
• Tell the beneficiaries so they can nominate someone, or check whether the will names an alternate.
• If you are a beneficiary dealing with an executor who will not respond, ask a lawyer about a summons or a motion.
• Speak with a lawyer if the replacement lives outside Ontario or a bond may be needed.

Frequently asked questions