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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 refuse 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.

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