- A new trustee may be appointed in writing where a trustee dies, stays out of Ontario for more than 12 months, refuses or is unfit to act, or is incapable of acting.
- The person named in the trust document appoints, and if there is none, the continuing trustees or the last trustee's personal representatives do.
- The Superior Court of Justice can also appoint a new trustee.
A trust often lasts for years, so the trustee may die or become unable to carry on before it ends. Beneficiaries then wonder who is in charge and how a replacement is chosen.
This article explains the Trustee Act process for appointing a new trustee and the court's role. Details depend on the trust document, so a lawyer can confirm your situation.
When a new trustee can be appointed
Under Trustee Act s. 3(1), a new trustee may be appointed in writing where a trustee dies, stays out of Ontario for more than 12 months, refuses or is unfit to act, or is incapable of acting.
- The trustee dies.
- The trustee stays out of Ontario for more than 12 months.
- The trustee refuses to act or is unfit to act.
- The trustee is incapable of acting.
In plain words, a trust does not have to stop just because the person running it can no longer do so. Whether one of these situations applies to you depends on the facts, so it is worth confirming with a lawyer.
Who makes the appointment
The person nominated in the trust instrument appoints. If there is none, the surviving or continuing trustees, or the personal representatives of the last surviving trustee, appoint.
| Situation | Who appoints |
|---|---|
| Trust document names someone with that power | The nominated person |
| No one is nominated | Surviving or continuing trustees, or the last surviving trustee's personal representatives |
| Court route | The Superior Court of Justice |
If the only trustee dies
Until new trustees are appointed, the personal representatives of a sole trustee may exercise the trustee's powers. The sole or last surviving trustee may also appoint a successor trustee by will.
This means the person handling the late trustee's estate may be the first point of contact for the trust while a replacement is arranged. The exact steps depend on the trust document and the will, so a lawyer can help you read them.
Asking the court
The Superior Court of Justice may appoint a new trustee or trustees, either replacing or adding to existing trustees, or even where no trustee exists. This is the court route for replacing a trustee.
For personal representatives such as executors, the court can remove them on any ground on which it could remove any other trustee and appoint someone else in their place.
A trustee who is unsure how to manage trust property may also apply to the Superior Court of Justice, without starting an action, for the court's opinion, advice or direction.
After a replacement trustee takes over
How a replacement trustee's duties apply to your situation depends on the trust and its terms, so it is worth confirming with a lawyer. A trustee who wants to pass the accounts of dealings with the trust may file them in the office of the Superior Court of Justice. A person who appears to have a financial interest in an estate may bring a motion for an order requiring the estate trustee to pass accounts.
A trustee is entitled to a fair and reasonable allowance for their care, pains and trouble and the time spent, and a judge of the Superior Court of Justice fixes it. That rule does not apply where the instrument creating the trust fixes the allowance. A trustee may also pay a trust expense personally and recover the same amount from the trust property, although the court may later disallow the expense.
What to do next
- Read the trust document to see who is named to appoint a successor.
- Check whether the last trustee left a will naming a successor.
- Make sure any appointment is in writing.
- Gather the trust document, any will and any records of the trust's accounts so a lawyer can review them.
- If there is disagreement or no one can act, speak with a lawyer about applying to the Superior Court of Justice.
Frequently asked questions
Does the trust end when the trustee dies?
Not automatically. A new trustee may be appointed in writing, and a sole trustee's personal representatives may exercise the powers until then.
Who picks the new trustee?
The person nominated in the trust instrument appoints. If there is none, the surviving or continuing trustees or the last trustee's personal representatives do.
Can a trustee be replaced if they are still alive?
Yes, in cases such as refusing or being unfit or incapable of acting, or being out of Ontario for more than 12 months. The court can also appoint a new trustee.
Can beneficiaries go to court?
The Superior Court of Justice may appoint a new trustee, replacing or adding to existing ones. A lawyer can advise whether that route suits your situation.
Sources
- Trustee Act, R.S.O. 1990, c. T.23 (e-Laws) — Ontario e-Laws
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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