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By Julie Cazzin with Ed Olkovich
Q: Who is in charge of a will/estate if both the testator and the executor are deceased? And if a married person dies without a will, is the spouse automatically the executor of the estate? If not, who is? — Marzia
FP Answers: Believe it or not, Marzia, this happens frequently. That is why wills need to be updated. Named executors in a person’s will can move or die before the will maker. This can also happen if the named executor chooses not to accept or renounces the executor job.
If the deceased person’s will does not name backup executors, replacements must be appointed by the court. Assume nothing happens until courts appoint replacement executors months later. This process is identical to one where a person dies without a valid will or no named executor(s).
Courts may appoint executor replacements who have no conflict of interest. There are different rules to rank or decide who has the first right of appointment. Someone must apply for the courts to appoint them as replacement executors. They should reside in the jurisdiction (province).
What if no replacement executor comes forward? Then someone who has a financial interest in the estate can apply to become the replacement executor, depending on local estate laws. Consent from the majority of beneficiaries located in the jurisdiction is usually required.
The court approval process is time consuming and can lead to disputes. If there is an ongoing business or assets to manage, courts can appoint neutral persons or trust companies as “estate trustees during litigation” (ETDL) for these tasks. Having an ETDL helps if the last will is contested or other court claims are made.
Married spouses are not automatically entitled to be replacement executors. They may have conflicts of interest. Courts consider local family and estate laws, and whether minors or incapable beneficiaries are involved, to make appointments. Married spouses may serve as replacement executors if the estate is small and little is left once debts are paid. They may likely be the only person who wants the job. Courts may not require them to file a bond.
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As well, you must clarify if the spouses were married or common-law. In different jurisdictions, common-law spouses may not have any inheritance rights to apply. They may have to make claims against the estate for a share of property or support. This would disqualify them from acting as executors. They cannot be executor of any estate that they are suing.
Ed Olkovich is a Toronto lawyer and certified specialist in estates and trusts law. This information is not legal advice. Discover more at MrWills.com