THIS BLOG WAS WRITTEN BY ANTHONY PRANATA, ESTATE & TRUST CONSULTANT, SCOTIA WEALTH MANAGEMENT
What is harder than being the executor of an estate? Being the executor of two estates simultaneously.
If you are thinking there is no way this would happen to you as long as you are only appointed in one Will, think again. By accepting one executor appointment, you may become responsible for the estates of multiple people by virtue of chain of executorship.
Take the following situation:
- John appoints Sarah as executor of John’s Will
- John dies and Sarah commences acting as executor
- Sarah dies before completing the administration of John’s estate
Who takes over?
If John appointed an alternate executor to act in the event Sarah could not continue to act, then that alternate executor would take over.
However, if John did not appoint an alternate executor, then the executor of Sarah’s Will becomes the executor of John’s Will to finish what Sarah started. In British Columbia, this chain of executorship is set out in section 145 of the Wills, Estates, and Successions Act of British Columbia, as amended (“WESA”):
If a deceased will-maker was an executor of a person who died before the will-maker, the executor of the deceased will-maker has all the rights, powers, rights of action and liabilities of the deceased will-maker with respect to the estate of the deceased person.
You might be thinking, what happens if Sarah dies without a Will?
In this case, the beneficiaries in John’s Will would have priority to apply, or consent to another person applying, to be the administrator of John’s estate. This is set out in section 131 of WESA:
If a person dies leaving a will, and the executor named in the will renounces executorship or is unable or unwilling to apply for a grant of probate, or if no executor is named in the will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority:
(a) a beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;
(a.1) a person nominated by a beneficiary if that person has the consent of the beneficiaries representing a majority in interest of the estate, including the beneficiary who nominated the person to apply for a grant of administration with will annexed;
(b) a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;
(c) any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.
Because of the legal mechanism that is chain of executorship, if you are appointed as executor of Sarah’s Will and Sarah passes away while acting as executor of John’s Will, you may wish to consult with a lawyer regarding your exposure stemming from John’s estate before you agree to act as executor of Sarah’s Will.