Feb 27, 2023
Frequently asked questions about probate in Ontario; answered.
Get the answers you need about probate in Ontario. Our comprehensive FAQ guide has everything you need to know.
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Estate planning is all about being prepared for multiple scenarios: That’s why it’s so important to nominate an estate executor who will be able to face certain curveballs in the probate process and be aware of the estate’s ins and outs.
However, sometimes even the most comprehensive plan can be derailed when the unexpected happens.
An estate executor is a key player in a testator’s estate plan: They’re in charge of filing for probate, collecting the estate’s assets, paying off any debt the estate had, and distributing the inheritance to beneficiaries.
The executor is the main point of contact for beneficiaries who want to stay updated on the estate settlement’s progress, as well as helping them access the assets that were designated to them in the deceased’s will.
There are examples where an executor may not feel fit to carry out their duties, or was asked to give up their duties by beneficiaries because of conflicts of interest or instances of mismanagement.
In those cases, the probate court may either appoint a new executor, or the will lists a secondary executor who can step in. But what happens when the executor of an estate dies?
When a testator creates their will, they often already have a specific person in mind to act as their estate executor when they pass.
Usually, this person is someone who is close to the testator—either a spouse, an adult child, a sibling, or a close friend—and in the ideal case, the two would have closely discussed the details of the estate plan and the executor would be well informed of the testator’s wishes.
But while the executor-to-be is an important person in the estate planning stages, their duties don’t begin until after the testator passes. They cannot be the executor of someone’s estate until that person dies.
If an executor dies before the testator, then the testator has no potential executor for their estate. In this case, the testator must act fast by amending their will and appointing a new executor.
If the testator dies with no executor named in their will, then the court will appoint someone to act as executor.
This is not exactly ideal, since the nominated person may be unaware of the responsibilities of the role and may be unprepared or overwhelmed to carry them out, since they weren’t prepped on the estate plan.
If the testator passes and has named an executor in their will, then that executor can get to work right away. Probate can be a lengthy process and can take anywhere from six months to a year, depending on the complexity of the estate and where the corresponding probate court is located.
If an executor dies during this time, it can really throw a wrench into ongoing probate proceedings.
If this happens, then a testator’s loved ones and the probate court are faced with the same dilemma: There’s no executor to settle the estate. In that case, the court will also have to nominate a new executor to settle the estate.
As you can imagine, this can really delay probate proceedings since the new executor will have to become acquainted with the estate, find out how far along the probate process already is, and try to catch up while being thrown right in the middle of things.
You know how they say that the best defense is a good offense? Being proactive and tackling potential problems at their root before they can even arise is the best way to ensure smooth sailing.
A proactive and savvy testator will appoint a successor executor or even a co-executor in their will to not leave anything up to chance in case their chosen executor becomes incapacitated for whatever reason.
A successor executor is someone named in the will who will take over as executor in case the original executor dies or becomes incapacitated. A co-executor means that the duties and authorities of an estate executor are shared among two people equally.
So if one of the executors is no longer able to conduct their duties, the other one can continue the settlement process seamlessly. In both cases, it’s important that the executors and testators have extensively discussed the responsibilities and requests that form part of this role.
Whether you’re a beneficiary with questions about the probate process or someone wondering how to best prepare for all scenarios while estate planning, we’ve got you covered.
Our experienced team of estate professionals is here to help you with a wide variety of estate-related issues and questions. Curious? Reach out for a free consultation and find out how we can help.
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