The Default Position: What Happens to the Administration of Your Estate if Your Executor Dies?

In a Will, the executor appointment is one of the most carefully-considered decisions of the will-maker. It is a position of significant trust and responsibility.

But what happens if the intended executorship fails?

Scenario 1: The Deceased Executor Dies with a Will

If the Will of the deceased will-maker (we will name him “Alex”) has been probated and the executor (we will name him “Brendan”) dies before completing the administration of Alex’s estate, the executor of Brendan’s Will (we will name her “Cassie”) inherits the executor position of Alex’s estate once she obtains probate of Brendan’s Will. Cassie becomes the executor of both Brendan’s Will (the position to which she was appointed) and of Alex’s Will (the position she inherited). This “chain of executorship” existed under section 64 of the Estate Administration Act and is continued under section 145 of the Wills, Estates and Succession Act (“WESA”).

Scenario 2: The Deceased Executor Dies with no Will

The chain of executorship breaks down if the executor does not leave a Will. If Brendan dies intestate, he is not a “will-maker” and section 145 of WESA is not engaged.

Facing a broken chain of executorship, WESA governs Brendan’s intestate estate. Pursuant to section 131 of WESA, the court may grant administration with will annexed of Alex’s estate to one or more of the following persons in the following order of priority:

  1. a beneficiary who applies, having the consent of a majority of the beneficiaries of the estate;
  2. a beneficiary who applies, without the consent of a majority of the beneficiaries of the estate; or
  3. any other person the court considers appropriate.

Process

A person may apply to be substituted as the personal representative if the deceased’s executor has died by filing:

    (a)          a copy of the death certificate of the executor;
    (b)          an affidavit specifying the right to be appointed, on the basis that the applicant is one of the following:
    (i)            the alternate executor;
    (ii)           entitled to apply for administration under WESA, s. 130; or
    (iii)          entitled to apply for administration with will annexed under WESA, s. 131.

The applicant must also file an affidavit confirming delivery of the above affidavit to every person who was entitled to notice under the original application, and to any executors who did not receive notice of the original application and have an equal or greater right to apply to be the personal representative.

The procedure to institute a replacement executor for the deceased will-maker is as follows:

    (a)          apply for a subsequent estate grant in the same proceeding as the initial grant to:
    (i)            remove the deceased executor and substitute the applicant as personal representative of the estate of the deceased will-maker; and
    (ii)           revoke the original grant of probate and issue a new grant to the applicant; and
    (b)          serve copies of the notice of application and supporting materials in accordance with the applicable Supreme Court Civil Rules.

It is wise to consider an alternate executor in the event that the first appointment is unwilling or unable to act or to continue to act. For further inquiries on this topic and advice about estate planning, please contact one of our lawyers in our Wills, Estates + Trusts Practice Group.