If an estate trustee dies before an estate is administered, who succeeds them readily to become the estate trustee depends on a number of factors, the most of important of which is whether the estate has been ‘probated’ (a Certificate of Appointment of Estate Trustee issued by the Court) or not.
In Ontario, there is a presumption that the living spouse, followed by the closet living next-of-kin of the deceased, has the first right to apply to apply to be the Estate Trustee. Anyone who has predeceased the grant of probate is excluded from this consideration.
With a Will
If an executor named in a will predeceases the testator, the next alternate named in the Will has the right to apply. When filing the application, an alternate trustee needs to provide a copy of the death certificate of any executor named before them.
If there is no alternate named in the will or able to act, and the named executor has predeceased, someone not named can apply to be Estate Trustee. However, they will need to post a bond or secure a court order to dispense with the bond (learn more here).
A dies without a Will
If A died without a will and B was appointed Estate Trustee Without a will for A’s estate, but B dies before they have fully administered A’s estate, an application for Succeeding Estate Trustee Without a Will must be filed for A’s estate to replace B. The applicant must be a resident of Ontario, and must have the consents of the persons entitled to a majority interest in the remaining value of A’s estate. The applicant need not have any relationship to B or B’s estate. The applicant must address the bonding requirement.
A dies testate. B is appointed Estate Trustee With a Will of A’s estate. B dies.
Here, the key considerations are:
- must the next trustee post a bond or secure a court order dispensing with a bond, and
- can the next trustee obtain an appointment ‘over the counter’ or will a Court order from a judge be required.
If A’s will provides that C is an alternate executor in the event that B dies or is no longer able to act, then C should apply for a Certificate of Appointment of Succeeding Estate Trustee with a Will for the Estate of A. As a named alternate executor, C will need to file a death certificate for B but does not need to address bonding. This highlights the value of comprehensive will drafting that is attentive to the possible scenarios.
If C does not wish to act, C should renounce.
If A’s will does not name any alternate C, or C is unable or unwilling to act as trustee of A’s estate, then there are various other possibilities:
- D, the executor of B (the ‘’executor of the executor”) has the right and duty to administer A’s estate, once D probates B’s Will. In this case, a fresh probate application for A’s estate is not required; D can apply for and obtain a Court status certificate so he/she can continue administering A’s estate.
- D cannot just ‘reject’ the duty with respect to A’s estate. If D does not wish to complete administration of A’s estate, D should effect the resignation of B (including a passing of accounts). In this case, a Court order removing B and appointing a successor for A’s estate will be required.
- If B’s Will names E, someone other than the primary executor of their own estate (who is D), to act as the estate trustee of A’s estate, then E must file an Application for a Certificate of Appointment of Succeeding Estate Trustee with a Will to the Court to become the Estate Trustee of A’s estate. Signed original consents of each of the beneficiaries of A’s estate should accompany this application. (this scenario is particularly common if B is a lawyer, and wants one person (for instance their spouse), to administer their own estate, and someone else (likely another lawyer or a trust company) to administer A’s estate.
- If B’s will did not name an executor, then no devolution of trusteeship is possible. A Court order will be required to appoint a new estate trustee for A’s estate. A compelled passing of accounts for A’s estate by B is possible.
If B dies without a Will (that is, the executor dies intestate) and there is no alternate named in A’s will available, then, there is no simple devolution of the trusteeship for A’s estate. A Court order removing B and appointing a new estate trustee for A’s estate is required.