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Thursday, March 10, 2011

What happens if there is a will but no executor?

It's possible to pass away leaving a valid will, but still not have an executor. The person you named as executor could have passed away before you, or lost mental capacity, or simply refused to be your executor. This might create a situation where the will sets out everything the way you want it to go, but there is nobody to take charge and carry out your instructions.

You probably know that if you hadn't left a will at all, and you had assets that need to be dealt with, someone would apply to the court to become your administrator (as opposed to executor). The process is much the same when there is a will with no executor. Someone would have to come forward and apply to the court to be your administrator, but they would also have to give the court your will. It's a cross between an application for probate and an application for Letters of Administration.

If the deceased has made a will, it's important for someone to bring it to the court to carry out the deceased's wishes. There could be gifts of specific items or property in the will. The distribution of the estate might not be the same as it would be under the intestacy (i.e. no will) rules. Wills generally include additional instructions for things like loans made to children during the deceased's lifetime, shares in a family company or dealing with the cottage.

The rules about who has the right to make this application are set out in each province. Assuming that the named executor is out of the picture for the reasons mentioned above, the person with the right to apply to the court is probably a residuary beneficiary of the estate as set out under the will.

An executor's authority to take control of a deceased's assets arises from the will. If there is a will but no executor, nobody has a right to control the deceased's assets until the court appoints him or her. Once the appointment has been made, the administrator's job is much the same as an executor's.

5 comments:

  1. My wife was my executor & beneficiary, she passed last month. Her nephew, a lawyer, is no longer a permanent resident of the province and can't be assistant executor. My will was created in 2015 and paid for. What can I do?

    ReplyDelete
    Replies
    1. Your executor doesn't have to live in your province, though logistically it's easier, faster, and cheaper if they do.

      Sounds like you need a new will.

      Lynne

      Delete
  2. My dad made a will but in the will no executioner I don't know if lawyer made mistake. My dad passed away last year so in this case what happens my mom is alive she was my dad's spouse but my dad also has three other children from another marriage but he divorced with that woman so how long do you have to execute to will when there's no executioner

    ReplyDelete
    Replies
    1. I assume you read my post so you know that someone must apply to the court to ask for what is known as "letters of administration with will annexed". I believe your question is more about who is the one to do that. Your mother, as the spouse, is the person who has the right to apply to the court. The divorced wife has no right to apply. If your mother does not want to do it, or is unable to do it, then you must look to the will to see who is to receive the estate. Residuary beneficiaries have the next right after your mother.

      There is no specific timeline to probate a will in most jurisdictions, but if nobody does anything for a long time, there is always a risk that a beneficiary will come forward to the court and complain that nothing is happening.

      Lynne

      Delete
  3. Narvinderjit, I should also add that if a lawyer drew up that will and did not include an executor, then yes, he or she made a big mistake.

    Lynne

    ReplyDelete

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