Who Cannot Be an Executor in Ontario? Age and Criminal Record

When someone names you, or a relative, as executor, you may wonder whether a young age, a criminal record or money problems stand in the way. The answer is not a single list of banned people. It depends on the facts and on what a court would think.

This article explains the grounds the Trustee Act sets out for replacing an estate trustee, how a court can remove one, and what happens if the named person cannot act. Executors are called estate trustees in Ontario court documents.

Is there a simple list of people who cannot be executor?

There is no simple checklist of who can never act. The clearest official guidance is the list of grounds on which a trustee can be replaced. Those grounds are the best guide to what a court may treat as a problem.

Whether a person who is still a minor can act as executor is a question to confirm with a lawyer before anyone relies on a will that names one. The same goes for any other special situation, such as a person with a serious illness or limited capacity.

Criminal record, bankruptcy and other grounds

Under the Trustee Act, s. 3(1), the grounds for replacing a trustee include the following.

These are grounds for replacement. A conviction or a financial problem does not by itself tell you what a court would do in a particular estate, so get advice on your own facts.

Living outside Ontario

Living elsewhere does not necessarily rule someone out, but it can add a step. A bond is required with the probate application when the applicant does not live in Ontario, another Canadian province or territory, or a Commonwealth country, and a judge can order that no bond is required. Remaining out of Ontario for more than twelve months is also a listed ground for replacing a trustee.

How a court can remove an executor

The Superior Court of Justice may remove an executor or administrator on any ground on which it may remove any other trustee, and may appoint a replacement. An application can come from an executor who wants to be relieved of the office, a co-executor, or a person interested in the estate, such as a beneficiary.

If the person removed is not the sole executor, the court need not appoint a replacement, and the estate may continue with the remaining executor or executors. The Court of Appeal for Ontario has said that removing estate trustees chosen by the deceased is a serious matter. A beneficiary who is simply unhappy should not expect removal to be automatic.

What to do next

• Read the will to see who is named and whether alternates are named.
• If the named person declines or cannot act, ask whether the beneficiaries wish to nominate someone else.
• If there is no will, remember that the spouse or common-law partner usually has the first right to apply, followed by a close adult relative.
• If you are worried about a conviction, bankruptcy or residence outside Ontario, speak to an estate lawyer before applying.
• If you are a beneficiary concerned about an executor, get advice before going to court.

Frequently asked questions