- John Hodgson
Who Is The Executor If There Is No Will?
When a person dies without leaving a Will, that person is said to die intestate; the result is an intestacy. An intestacy is usually more difficult and time consuming to administer than an estate governed by a Will.
This post answers the question of who can become the executor when the deceased did not leave a Will. It should be noted that in Ontario “executor” is no longer the correct legal term for someone who looks after a deceased person’s estate. In Ontario, “Estate Trustee” is now used to describe an executor an administrator whether male or female. This eliminates the old-fashioned and awkward Latin terms “executor,” “executrix,” “administrator,” and “administratrix.”
When there is no Will, the only way for someone to be granted authority to administer the estate is to apply for a Certificate of Appointment of Estate Trustee without a Will (“Certificate”). The person named in the Certificate is called an Estate Trustee.
Before we delve into who may apply to become Estate Trustees, it is very important to note who cannot be named as Estate Trustee. The Estates Act expressly forbids anyone not residing in Ontario from being granted a Certificate.
The Estates Act sets out who may be appointed Estate Trustee(s). The persons entitled are:
(a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;
(b) the next of kin of the deceased; or
(c) the person mentioned in clause (a) and the next of kin
Where there are several persons in the same degree of kinship to the deceased, the court will use its discretion to appoint one or more of them based on the court's view of the interests of the estate.
It is generally accepted that the order of preference for persons who are next of kin after the deceased's spouse or common law spouse is as follows:
children of the deceased;
grandchildren of the deceased if no child is living;
great-grandchildren of the deceased if no child or grandchild is living, and so on if there is a lineal descent (descendants are preferred over ascendants even when the latter are closer in relationship);
the father or mother of the deceased who leaves no issue;
the brothers or sisters of the deceased who dies without issue or parents;
the grandparent(s) of the deceased who dies without issue, parents or siblings;
the uncles, aunts, nephews, nieces and great-grandparents of the deceased who dies without issue, parents or siblings;
collateral relatives of more remote degrees, those of equal degree having an equal right; and
where there are no next of kin in Ontario, the Public Guardian and Trustee.
If there is a person in priority who is entitled to be an Estate Trustee but does not want to be an Estate Trustee, that person must sign a renunciation. This renunciation must be filed with the application for the Certificate.
There is no fixed rule for choosing if two people of equal claim want to be appointed the Estate Trustee. A court must decide, upon application from the interested parties. This can be a very long and expensive process if you have two or more people equally entitled but cannot come to a consensus about who should be the Estate Trustee(s).
In order for the court to grant the Certificate to the Estate Trustee(s), a consent to their application is required by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death.
These required consents often take months to secure from the necessary parties. This further delays the distribution of the estate.
If you have further questions about estate matters, please do not hesitate to contact us.