What happens if the executor has a stroke and can't finish the estate?

What happens when an executor doesn't finish the estate when, through no fault of his own, he suffers an illness or injury that prevents him from wrapping things up? The process of getting a new executor into place may be more complicated than you realize. A reader recently wrote to me about this procedure. His letter and my response are below:

"My brother is the executor of my mother's estate. He has suffered a stroke and is slowly recovering but it's very difficult to communicate with him. My question is can someone replace him without electing a new executor? Can the power of attorney for his will assume control of our mother's estate? How can he sign papers, cheques if he is not physically able to do so?"

Neither of the suggestions you've made here are legally possible.

If your brother wants to maintain control of the estate despite being physically unable to sign paperwork, this might still be possible. This would only work if he is able to communicate verbally. He could instruct the estate lawyer to hold estate funds in his or her trust account and to write the cheques on the executor's behalf. The executor would still be the executor but would delegate tasks to someone else. It wouldn't necessarily be easy, but whether it's a viable option will depend on your brother's condition.

If your brother is willing to give up executorship, the first question is who will replace him. Look at the will to see whether there is an alternate executor named there. If so, that is the person who has the legal right to take over the estate. If there is no other named executor then someone else will have to step up.

The Power of Attorney document became void when your mother passed away. That document no longer gives anyone any authority.

If there is nobody named as an alternate, the Rules of Court in all provinces state who is next in line to apply. You may be surprised to learn that the line-up doesn't necessarily name people in order of kinship. Kinship would be the deciding factor in the absence of a will, but here you have a will to work from. The next people in line would be the residuary beneficiaries.

At this point, your idea of electing someone, though not correct, may not be that far off depending on the number of people who are named as residuary beneficiaries in the will. Obviously if there are a few of you, not all of you would act as executors. It would work best if all of you agreed on one person who could take over for your brother, which is what I believe you meant when you referred to electing someone. All of those who agree not to apply even though they are in the group with authority to apply will have to sign renunciation forms. If there are no residuary beneficiaries who will do it, you can move to the next group.

The next question is how that substitute executor gains the legal authority he or she needs. You are talking about "assuming control" of the estate. The person who takes over will want some reassurance, I assume, that if your brother did something questionable, that is not going to bounce back on the new executor. I also assume that your brother wants the same kind of reassurance that if the new person does a terrible job, that won't end up as a liability for your brother.

No matter who it is, the person has to be confirmed by the court as executor. There is no informal way of legally taking over an executorship; there must be court approval. The person taking over as executor will make an application to the court to pick up where the old executor  left off. This is really not that unusual in the courts and the provinces all have forms for this.

Normally the transfer of authority from one executor to another involves the outgoing executor filing his accounts to be passed by the judge. That's something that will have to be figured out with your brother's cooperation.

The probate court processes are formal, but that's intentional. If it were any easier for people to assume informal control of other people's assets, nobody would ever get to inherit anything!