What happens if there is no named executor in a Will? How does the estate get administered if there is no one named to do it? If a Will has properly been drafted, the probate judge will almost always appoint the executor named in the Will. However, situations and unforeseen events arise where the Will that was left behind does not validly name an executor. Sometimes “home-made” Wills describe the dissolution of assets but fail to adequately appoint someone to administer the Will. Other occasions arise when someone has been appointed as the executor, yet that person chooses to renounce their appointment as they do not want to take on the responsibility. There can also be the situation where there is no Will at all, which is called an “intestate” estate. We typically try to avoid intestate estates due to the extra cost and proceedings required to have an executor/administrator appointed.

In the March 11, 2013 blog post, we discussed the mandatory distribution schemes created for intestate estates. As mentioned, there are rules in place that allow the estate to be distributed to loved ones. However, it is still important for someone to become the executor/administrator of the estate in order to take care of specific matters such as realizing all of the deceased’s assets, paying off debts and most importantly, protecting the estate.

When an application for an estate is made to the probate court the deceased’s estate will remain vested in the court until a personal representative is appointed by the court. The term personal representative includes both an executor and an administrator. The executor (person appointed under a Will) and the administrator (person appointed by the probate court if no named executor in the Will) both assume the same role in looking after the deceased’s estate. If there is a Will and it names an executor, the executor makes a (typically) simple application for probate, and as mentioned above the probate court will almost always appoint the executor named in the Will. If there is a Will but no executor has been established, the process is much the same. In addition an interested party (usually a family member or beneficiary of the estate) will have to come forward and apply to the court to be the administrator by obtaining letters of administration with the Will annexed. Finally, when there is no Will, an interested party will have to apply for letters of administration without the Will annexed. That person would then be named the administrator of the estate and would have to work with the court to distribute the estate in accordance with the law related to intestate estates.

The Wills, Estates and Succession Act sets out a priority list for applicants whom the court will grant administration to for both applicants under an intestate estate and applicants for administration with Will annexed. For an intestate estate, the court gives top priority to the spouse. At the other end of the priority spectrum, the court will grant administration to any other person the court considers appropriate. For administration with Will annexed, the court will give priority to any beneficiary under the Will who has consent from the other beneficiaries and again, will also consider any other person the courts considers appropriate. Despite the priority provisions, the courts take into consideration all special circumstances which are relevant in order to pick the right person for the job.
It is not the end of the world if a Will has not fully been executed, but please, save yourself the strain from having to go through letters of administration. Contact our wills and estate team for any further information or to discuss your Will.

Author: Conor Zokol (Articling Student)

This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your corporate law and technology law needs, please contact our office at (250)448-2637

Una Gabie: una@touchstonelawgroup.com

Jennette Vopicka: jennette@touchstonelawgroup.com

Danielle (Dani) Brito: danielle@touchstonelawgroup.com