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Thursday, March 13, 2014

Are you still the executor if the will that named you is revoked?

What if you were named as the executor in a will, but that will has been revoked? Are you still the executor if there is no new will? A reader asked me about this. His question and my answer follow:

"If my brother and I were named as executors in my father's will and he has remarried but never made a new will, does that mean we are no longer executors and if so who looks after his estate upon his death?" 

In most provinces, marriage revokes a will automatically. This is not the law in all provinces, though, as Alberta and BC have made changes in the last couple of years. Marriage does not revoke a will in Quebec. It's also possible for wills to be made in contemplation of marriage so that they are not revoked upon marriage, but that does not appear to be the case in your father's situation.

If your father married in a province in which marriage revokes the will, then the entire will is void. In the eyes of the law, your father does not have a will at all. This means that you and your brother are no longer the executors. If your father should pass away without making a new will, someone may have to apply to the court to be appointed as the administrator of his estate.

I say "may have to" because the need for a court-appointed administrator largely depends on the type of assets owned by your father, and how the ownership is set up. For example, if he has put his home and accounts in joint names with his new wife, there may be no assets that need to be administered.

Assuming that it is necessary for your father's estate to have a court-appointed administrator, nobody automatically has that title. The court will appoint someone, based on a hierarchy of who may apply. Being entitled to apply to be someone's administrator is considered a right, and the next of kin have the greatest right. In other words, a friend or cousin couldn't apply to be an administrator for someone unless the closest relatives (spouse and kids) had said in writing that they don't want to do it. The closest relative is a spouse, so your father's wife would have the first right to apply to look after the estate.

If your father passes away without a will, this also means that his estate will be distributed according to the laws of intestacy in your province.

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