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.

How do I change executors?

I'm often asked this question, but before answering I always ask whether the person's whose Will it is (the testator) is still alive. In other words, are you trying to change the appointment of an executor in a Will, or are you trying to change an executor who is already in charge of an estate?

A person can change his or her choice of executor in the Will as long as he or she has mental capacity to do so. Changing the executor doesn't necessarily mean making a whole new Will. If you are happy with your Will other than the executor named, you can have a Codicil made that only changes the executorship. A Codicil is simply a new, brief document that amends your Will. It is much like a Will, in that all of the rules for Will-making also apply to Codicils. The advantage to having a Codicil made is that the process and the document are shorter and less expensive.

The Will and the Codicil must be kept together so that they can be read as one document.

If you are interested in changing an executor who was named in the Will but who has not done anything on behalf of the estate, and who doesn't want to do anything for the estate, that executor can opt out. The legal term for it is renouncing the right to be an executor. An executor might renounce if he or she is too ill to be the executor, if he or she has moved very far away, if he or she has lost mental capacity, if he or she doesn't get along with the family members, or for other reasons.

The important thing to remember about renouncing is that it can only be done right at the beginning of an estate before an executor does any work. Once the executor takes any steps at all as executor, he or she can't quit being an executor until the court says so.

If an executor renounces and there is an alternate executor named, the alternate executor can then take over and be in charge of the estate.

If there is no alternate executor named, you are left with a Will that is completely valid except that there is no executor to carry out the work. At this point, someone will have to be appointed as an administrator of the estate. The Will is still used, but the court will appoint an administrator to do the work that the executor would have done.

If an executor is part way through the job of being an executor and wants to resign from it, he or she must ask the court for permission. At that time, the executor will be required to give a full accounting of all financial transactions that he or she has done on behalf of the estate. This includes an update on the current balances and values of all accounts, properties and other assets, and an explanation for each expenditure. This process is sometimes called passing of accounts. Until the court has approved the accounts and dismissed the executor, he or she remains the executor.

Sometimes the family members want to change or remove an executor who they believe is not doing a good job. They want to remove someone who doesn't want to be removed. This is not easy. The court will not want to remove an executor who was chosen personally by the executor without very good reason. It is pretty nasty litigation most of the time, and not something that should be attempted lightly.

Top Five Mistakes Made by Executors

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Being an executor isn't easy. There's plenty of paperwork to be done, lots of interaction with government agencies, registries and lawyers. There are always beneficiaries putting on pressure to do things more quickly. And if all of that weren't tough enough, an executor risks personal liability for any mistakes he or she makes.

It's not surprising that executors make mistakes. In the interest of informing present and future executors, here is a look at the top five mistakes executors make:

1. Ignoring inconvenient or unpopular parts of the Will

Executors frequently feel that they have a better, or "more fair" idea of how an estate should be distributed than is directed by the Will. However, it's not their choice. Their job is to distribute the estate according to the Will, not to re-write it. An executor might be less tempted to change the distribution if he or she kept in mind that for every person who likes the new distribution, there is at least one person who is outraged by it. If the executor fails to follow the distribution under the Will, he or she may be responsible for paying the disappointed beneficiary out of his or her own personal funds.

Executors ignore other parts of the Will too. For example, an executor might sell an asset and give the beneficiary the proceeds, even though the Will directed that the asset be given in specie. The executor might give trust funds to children at a younger age than that directed in the Will. He or she might forgive loans that were to be collected. None of these things are within the authority of an executor and each exposes the executor to potential liability.

2. Keeping secrets and failing to communicate

Executors are often secretive to the point of being furtive. Nothing is going to fuel speculation and suspicion on the part of beneficiaries more than being kept in the dark. An executor must respond to reasonable enquiries from the residuary beneficiaries of an estate. They are entitled to it, and responsible for policing the actions of the executor. They are entitled to see the Will and all of the documentation filed with the court. Believe me, if beneficiaries can't get the informaiton they're entitled to, they will suspect the worst. Perhaps executors don't realize that as soon as the frustrated beneficiary hangs up the phone, his or her next call is to a lawyer.

Time and time again I hear stories of family members who are presented with complicated, mysterious documents by an executor and being told to sign them, without being given any information about what's going on. Any executor who treats important legal issues this way should expect pushback from the beneficiaries. This is a textbook example of how to start an estate dispute.

The failure to communicate even reaches to co-executors. Sometimes a person will act for weeks or months as an executor and not reveal that there is a co-executor appointed until he or she is forced to do so because a financial institution refuses to go further without both signatures.

3. Treating estate money as their own

Perhaps this is the reason for the secrecy mentioned above, but many executors either don't know or ignore the limits of their role. Executors have been known to pay off their own debts, make loans to family members and buy into business ventures, all with estate funds. None of this is lawful, and executors may be forced to repay those funds out of their own money.

Even executors who are honest make mistakes with estate money. For example, many executors don't see a problem with using estate funds to fly in family members from all over the world to attend the funeral, and using estate funds to supply those family members with hotels, transportation, meals and sometimes even clothing to wear to the funeral. These are not estate expenses. The executor could end up paying for all of that himself or herself.

4. Failing to deal with debts and taxes before paying beneficiaries

I suppose it's a natural human reaction to ignore unpleasant things, but this can't apply to executors who must prepare tax returns. By law, debts of an estate, including tax liability, must be paid before beneficiaries receive their shares. It isn't easy to resist the pressure from those who want their money now, but an executor who pays beneficiaries without having cleared all debts and liabilities may be personally responsible for paying those debts.

5. Trying to do everything cheaply

It's certainly not a bad idea to keep estate administration costs low, but unfortunately the way many executors go about that actually ends up costing the estate more money. "Keeping costs low" seems to translate into forgoing professional help in many cases. For example, they try to do tax returns without the help of an accountant, which means they miss eligible deductions and elections. They also miss filing deadlines, and so incur interest. They try to sell real estate without a realtor and settle legal disputes without a lawyer. They sell assets without appraisals and invest money with no guidance. Very few people can do all of these things well, particularly at the same time as keeping their full-time job and family going.

The best way to avoid these five main errors is to stick to the Will, take your time and ask for professional help when you need it.

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What is probate?

Probate is a process of submitting a deceased person's Will to the court and obtaining a court order called a Grant of Probate. Along with the original, signed Will, the executor sends a group of documents that together are called an Application for Probate. The Grant of Probate confirms the validity of the Will, confirms that the executor is the person in charge of the estate, and confirms that all parties, including beneficiaries, creditors, banks, land registries etc, should follow the instructions and wishes set out in the Will.

Some of the information sent along with the Will includes:
- facts about the deceased person's age, marital status etc
- details of the Will and/or Codicil that is being probated
- information about the family of the deceased person
- an inventory of the deceased's assets and debts
- evidence that the Will was properly signed and witnessed
- proof that the executor who is applying is the right person to do so
- a schedule of what each beneficiary under the Will is going to inherit
- proof that notice of the application was given to everyone entitled to it

The above list is simplified, but gives a general idea of what the Application for Probate is all about.

If there is no Will, or the Will is invalid, the person who wants to be appointed as being in charge of the estate will apply to the court for a Grant of Administration rather than probate. Once the person is appointed by the court, he or she has the same authority and responsibility as an executor. The estate would be distributed according to intestacy laws.

If there is a Will that is valid except for the executor appointment (e.g. the executor named has passed away and there is nobody else named), someone may apply to the court for a Grant of Administration With Will Annexed. In this case, the administrator would be appointed to fill the shoes of the executor and would follow the Will's instructions.

When the Application for Probate is filed with the court, there is a fee that must be paid. In the "Links" section of this blog I've linked to a chart of probate fees across Canada. I encourage people to learn about the fees that apply in their province, as I regularly see estate planning mistakes that people tell me were made to "avoid probate". See my earlier blog post here about the pitfalls of trying to avoid probate without proper advice.

Not every Will must go through the probate process. Whether or not probate is required will depend on the type of assets owned by the deceased, how they are owned (joint, individually etc), the value of the assets, the clarity of the Will, and other issues. If anyone contests the Will or if any parts of the Will are unclear, the executor will have to go through probate.

Probate is not a quick process. The gathering of information for the inventory is a slow process. Also, once the documents are complete and filed with the court, you can expect to wait up to six weeks for te documents to be processed by the Clerk of the Court and signed by a judge.

Can I open an estate account if there is no Will?

If a person passes away without a valid Will, and there are assets and debts to be dealt with, someone must apply to the Court to be appointed as Adminstrator of the Estate. As you can imagine, it takes a while for the family to search for a Will, conclude there isn't one, see a lawyer and bring an application to court.

The weeks or months that pass between the deceased's death and the appointment of an Administrator can be frustrating for the person waiting for the Court Order. There will be pressure from creditors for bills to be paid. There will be a funeral that must be paid for. There may be money arriving from pensions or investments or employment. And of course there will be beneficiaries wanting the estate to move along more quickly.

This set of circumstances may lead the person waiting to be appointed as Administrator in a really difficult position. He or she may be willing and ready to work on the estate, but cannot do anything without the Court authority. If there was no Will and there has been no Grant of Administration, then the would-be Administrator has absolutely no legal authority to spend, deposit, invest or do anything else with the deceased's money.

This means that the Administrator could not open an estate account before being appointed by the Court by a Grant of Administration.

If there were a Will in place naming someone as executor, that would be a completely different story.

While waiting for a Grant of Administration to be issued by the Court, the deceased's next of kin who arranged the funeral may submit the funeral bill (and some other bills) directly to the bank where the deceased had an account. Assuming there is enough money in the deceased's account, the bank will pay the funeral bill directly, without the money ever passing through the hands of the would-be Administrator.

Once the Court has issued the Grant of Adminstration, the administrator can do everything an executor could do, including opening an estate account to deal with the deceased's money.

What are the executor's duties?

When I talk about executor's duties in this blog, I usually focus on one duty or one detail at a time. However, I think many executors out there would appreciate having an overview of their duties, either as a first-time checklist, or as a refresher of what they learned when they first began working on the estate. So here is a list of what an executor in Canada is supposed to do (note that an administrator appointed by the court has to do these things as well, though he or she cannot do them until they are appointed):

• make arrangements for the disposition of the deceased's remains, as well as any arrangements for funeral, memorial service, etc.


• find out the names and addresses of the beneficiaries and notify them of their interests in the estate.


• list the contents of any safety deposit box owned by the deceased


• make an inventory of all of the assets and debts of the deceased. Give all assets and liabilities a value as of the date of death.


• check that property is insured. Advise the insurance company of the death. Place additional insurance if necessary.


• secure any valuable estate property. Once smaller valuable items have been inventoried, put them somewhere safe where they can't be stolen or damaged.


• arrange for protection and supervision of vacant land and buildings.


• make arrangements for the proper management of estate assets. If there is a business or farm, make sure there is someone running it properly. Sell assets if appropriate.


• apply for a Grant of Probate or Grant of Administration.


• hire a lawyer to advise you on any complicated or unclear issues.


• apply for all pensions, death benefits, life insurance or any other benefits that are payable to the deceased's estate.


• if there is any jointly owned property, advise the other joint tenant of the deceased's death (notice that this list does not include you taking care of the transfer of title. The surviving joint tenant can do that).


• if there are any life insurance policies, RRSPs or any other assets that name a beneficiary other than the estate, notify that beneficiary of the deceased's death.


• pay all of the debts and expenses owed by the deceased and by the estate.


• decide whether or not to advertise for creditors and claimants. If you choose to advertise, do so in accordance with the law. If there are claims, check them out for legitimacy. Pay legitimate claims from the estate.


• determine how much tax the deceased owes. Have tax returns prepared and filed on time. Pay the taxes before paying beneficiaries. Get a Canada Revenue Agency tax clearance certificate.


• if there is a lawsuit against the estate, hire a lawyer and run the lawsuit on behalf of the estate.


• set up any trusts directed by the Will. Administer the trusts for the length of time and on the conditions set out in the Will.


• answer enquiries from residuary beneficiaries, creditors and other stakeholders.


• prepare executor's financial statements including a proposed compensation schedule and a proposed final distribution schedule.


• distribute the deceased's property in accordance with the Will or with intestacy law.

As you can see, many items on this list are going to break down into smaller lists with several items of their own, but this should give you a general idea of what you'll be expected to do as an executor.

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When can an administrator start acting for an estate?

An administrator of an estate is similar to an exector in many ways, but there is one very important difference. An executor has the legal authority to act on behalf of an estate as soon as the person who appointed him or her dies. This is because the executor's authority is set out in the deceased's Will. An administrator, on the other hand, has not been named by the deceased. This means that an administrator can't act on behalf of an estate until he or she is appointed by the court, which could take a few weeks.

If a person dies without any Will at all, someone must apply to the court for a Grant of Administration. If the person dies leaving a Will, but the Will does not appoint an executor (for example, the named executor has died and there is no alternate named) there is a slightly different procedure. Assuming that the Will is otherwise valid, the person would apply for a Grant of Administration With Will Annexed. This means that the Will is going to be followed in every way other than replacing the executor.

If you intend to apply to the court to become the administrator of an estate for someone who has recently passed away, you can:

• protect any of the assets that you can
• if there are cheques for the deceased person, set up an account in the name of the estate and put the cheques in
• make funeral arrangements
• take the bill for the funeral to the deceased's bank and ask them to pay the bill out of the deceased's bank account

Some of the things you should not do before you are appointed are:

• pay any bills (other than funeral as mentioned) using the deceased's money
• tell people that you are in charge of the estate
• place a Notice to Creditors and Claimants in the newspaper
• sign any papers on behalf of the estate
• make enquiries about life insurance policies, bank accounts, investments etc belonging to the deceased in which you state or imply that you have authority to gather the information or the assets

An administrator is entitled to be paid for his or her work just as an executor is.

If someone in your life has passed away without leaving a Will and you are the person who is going to apply to the court, you may feel some urgency to get on with the things that need to be done in the estate. Take the time to do things legally and correctly to protect the beneficiaries of the estate, and to protect yourself from future liability. The first thing to do is see a Wills and Estates lawyer to get the application to the court going. If you choose a lawyer who does not specialize in Wills and Estates, you can expect the process to take longer.

If you are appointed as an administrator but are completely overwhelmed by the responsibilities or the time pressures, keep in mind that you can walk into any Scotiabank branch and ask them to call the trust department to help you. You can hire Scotiatrust to be your agent. This means that you're still the administrator and can call the shots, but you will have someone to do all the legwork.