Choosing who to name as the executor of your estate is an important decision to make when preparing your will (and a topic on which other All About Estates blogs have been written). But what happens if something happens to your executor, and they are unable or unwilling to act? Who will administer your estate? This blog will explore the scenario of an executor dying before the testator (the writer of the will) and offer some practical considerations.
What Happens if the Executor Dies Before the Testator?
This question was recently posed to me by a friend and the inspiration for today’s blog. The testator’s will named a sole executor and there was no alternate executor named. The usual recommendation would be for the testator to prepare a new will but, in this case, the testator was in hospice care and did not have the capacity to prepare a new will.
The next question asked was:
Can the person acting under the testator’s power of attorney take any steps to name a new executor before the testator dies? The answer is no. As my colleague, Jessica Butler, wrote in her recent blog on Powers of Attorney. “Both case law and the statutes that govern substitute decision making generally confirm that an attorney is restricted from making a will on a grantor’s behalf.” Section 7(2) of the Substitute Decisions Act provides that “The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that grantor could do if capable, except make a will”. [emphasis added]
As a result, when the testator passes away, they would have a will but no executor to administer their estate. This is sometimes referred to as an administration with the will annexed.
What Now – Who Will Act as the Executor of the Estate?
The final question asked was:
Will the “government” step in and take over the testator’s estate?
Again, in this case the answer is no. The Office of the Public Guardian and Trustee is the “estate trustee” or executor of last resort. The Ontario government website which provides general information on administering estates advises that:
“The Office of the Public Guardian and Trustee (OPGT) protects the interests of potential heirs when an Ontario resident dies and no eligible person is available to administer the estate. [emphasis added]
The OPGT may apply to be appointed estate trustee of last resort if all of the following apply:
- the deceased was an Ontario resident or owned real estate in Ontario
- the deceased did not make a will or the deceased did make a will but the executor has since died or become incapable
- there are no known next-of-kin living in Ontario or the next-of-kin are minors or mentally incapable adults
- the estate meets the OPGT’s financial criteria after payment of the funeral and all debts owing by the estate”
How does the Eligible Person Become Appointed the Estate Trustee (Executor)?
In our fact situation, I was told that luckily the testator has a next-of-kin living in Ontario who is a capable adult and who would be willing to act as the estate trustee. But, without an executor named in the will, it will mean a delay as no one has the authority to act until the individual applies for a Certificate of Appointment of Estate Trustee with a Will and it is granted to them by the Ontario Superior Court of Justice. The application requires additional information or documents as well, including (i) information on the date of death of the named executor; (ii) consent forms (Form 74H) signed by the persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death; and (iii) an estate administration bond, or materials in support of an order dispensing with a bond.
As you can see from above, it is much easier if there is an executor named in the will who is alive and willing to act when it comes time to administer your estate. To cover off the possibility of not having a named executor because of a death, you should consider naming more than one executor in your will and/or naming an alternate executor(s). It is also important to regularly review your will and update it when there is a change in circumstances, including with respect to your named executors.
Thanks for reading.