What Happens If the Executor Dies or Cannot Act in Manitoba?

You may have just learned that the person named as executor in a will has died, is no longer mentally capable, or simply cannot or will not take on the job. That can feel like the estate is stuck, especially when bills and property need attention.

The estate is not lost. Manitoba has ways to put someone else in charge. Which one applies depends on what the will says, who in the family is willing to act, and whether a court appointment is needed.

This article covers the law of Manitoba.

Start with what the will says

A will often names more than one person, such as a backup executor who steps in if the first choice cannot serve. Read the whole document, including any later changes, before assuming no one is available.

If the will names a backup executor, whether that person can step in depends on the wording of the will and on your situation, so it is worth confirming with a lawyer. If the will names no one else, or everyone named has died, refused or cannot serve, how the estate gets administered depends on your situation, so it is worth confirming with a lawyer. A lawyer can tell you which kind of application fits your situation.

Who can be appointed when no executor is left

Where the Public Guardian and Trustee (PGT) managed the property of a person who has died and there is no will, a relative who lives in Manitoba may apply to administer the estate, and if none does, the PGT can apply. Who may step in when an executor is gone depends on your situation, so it is worth confirming with a lawyer.

The PGT describes itself as an administrator of last resort. It acts only when no one else is willing, capable and appropriate, for example where it already acted for the person, where the court asks it, or where no one resident in Manitoba can act or there is a dispute.

• The court may appoint the PGT as administrator on the PGT's application if the deceased left property in Manitoba and no grant has been issued here.
• Unless the court orders otherwise, that application cannot be made until 120 days after death if there is a will, or 30 days if there is none.
• The PGT is not required to accept an appointment just because it has the power to, unless a court orders it.
• When it acts, the PGT has the powers and duties of a trustee under The Trustee Act.

Changing the administrator later

If the PGT is appointed and a suitable family member or other eligible person later comes forward, the court may revoke the grant made to the PGT and issue it to that person. The person applying must serve the PGT at least 10 days before the hearing. If all interested persons are capable adults who consent, the PGT must not oppose the application.

What still needs attention while you wait

Some matters cannot wait for a new administrator to be sorted out, and a few rules are worth knowing.

• A power of attorney ends when the donor dies. An attorney who did not know of the death, and could not have known with reasonable care, is not liable to the estate for acting afterward.
• Funeral and burial can be arranged by the executor, next of kin or a friend, and the estate pays.
• Estate assets must cover debts before will beneficiaries inherit.
• Final tax return deadlines depend on the date of death, and the CRA says the legal representative should get a clearance certificate before distributing assets.

What to do next

• Find the original will and any later documents, and check who is named as executor and as a backup.
• Get certified proof of death if you do not have it yet; only next of kin can get a certified photocopy of a death registration.
• Make a list of family members and beneficiaries who might be willing and capable of acting.
• Keep the deceased's personal papers together, since they help identify next of kin.
• Speak with a Manitoba lawyer about the right court application before anyone distributes property.

Frequently asked questions