It is very difficult to plan for every possible scenario when you are drafting your will. Not only is it important to consider who to name as your executor, but you also need to think about what would happen if something happened to your executor. In an earlier blog, I looked at what happens if an executor dies before the testator and offered some practical considerations. Today’s blog will explore what happens after the death of the testator if an executor dies before the testator’s estate is fully administered.

If More than One Executor is Acting and One Dies

We recently had an estate where two executors were acting, and one executor died suddenly. This estate had been ongoing for some time, and I had worked closely with this gentleman. It was very sad, and it felt like a family member had passed away.

The will had language appointing the two executors “or the survivor of them” to be the executors of the will and trustees of the estate. As the will contained this language, the surviving executor continued as the sole surviving executor of the estate. The bank was very familiar with the estate and the (now deceased) executor (everyone loved him!). We pointed out the survivor wording in the will to the bank and in this case, they were satisfied with a copy of the death certificate of the deceased executor. The bank updated the signing authority on the estate bank account to reflect that the surviving executor had sole signing authority.

What if the Bank or Others Need More Proof?

In other circumstances, we have had to obtain a Court Status Certificate from the court as proof of the sole surviving executor’s authority. The process for obtaining the Court Status Certificate is set out in rule 74.14.2 of the Rules of Civil Procedure (Ontario) (“RCP”). The request is made by the law firm writing a letter to the registrar of the Ontario Superior Court of Justice that issued the certificate of appointment. The surviving executor swears an affidavit that confirms the death of the executor and the “circumstances under which the surviving [executor] continues to be authorized to act”. A copy of the death certificate is attached as an exhibit to the affidavit. The amount of the filing fee to obtain a Court Status Certificate is currently $33.

What if an Alternate Executor is Named?

A will may contain language naming an alternate executor to act if one of the executors has died (or is unable or unwilling to act). If the alternate executor accepts the appointment, a new probate grant has to be obtained, you cannot simply get a Court Status Certificate. The application that is filed is for a certificate of appointment of succeeding estate trustee. Rule 74.06 of the RCP sets out the documents that need to be filed. It is important to note that the original certificate of appointment is returned to the court. The new certificate of appointment of succeeding estate trustee that is issued will indicate the name of the surviving executor and the alternate executor acting in place of the deceased executor. The amount of the filing fee to obtain a certificate of appointment of succeeding estate trustee is currently $138.

Check out the Estates Procedures Manual

As mentioned, there are many different scenarios relating to a change in the executors in a will, too numerous to discuss in this blog. A great resource for determining whether you need to request a Court Status Certificate or file an application for a certificate of appointment of succeeding estate trustee is Section 11 of the Estates Procedures Manual.[1] This section also gives various helpful examples you can walk through to see which one fits your fact situation.

I hope you find this information helpful. Thanks for reading.

[1] This blog has a section on “What is the Estates Procedures Manual and how do I get a copy?” At the time of writing today’s blog, the most current version of the Estates Procedures Manual was September 27, 2023.