Sometimes, an executor dies after beginning, but before completing, administration of an estate. Then, the question arises: who is responsible for completing the administration of the estate? Usually, this question is answered by the provisions of one’s will specifying alternate executors. On occasion though, either a will’s drafting does not address this possibility, or despite providing for several alternative executors, none of the named alternate executors are willing or able to take on the role. Who is in charge then? This is the question we will address in this month’s post.
There are a few scenarios in which an executor dying mid-administration can lead to what for many is a relatively surprising, though logical, outcome. To understand what can happen and how, consider the following example.
Anabelle has, sadly, died. In her will, Anabelle named Edward as executor of her estate. Edward begins administering Anabelle’s estate, but after obtaining a grant of probate and beginning to take steps to sell Anabelle’s house, pay her taxes, and consolidate her assets, Edward is in an automobile collision and dies.
Often, Anabelle’s will would say something along the lines of:
I appoint Edward to be my Executor, but if Edward is unwilling or unable to act or continue to act as Executor of my Estate, I appoint Franklin to be my Executor.
Sometimes though, we encounter situations where Anabelle’s will instead says:
I appoint Edward to be my Executor, but if Edward dies before me, I appoint Franklin to be my Executor.
This is a good example of why careful drafting is important. The former clause provides for who will be executor both if Edward has died before Anabelle, but also if Edward has started acting as executor but has died before completion. In contrast, the latter clause only provides for what happens if Edward has died before Anabelle.
If Edward dies mid-administration and Anabelle’s will has the latter clause, a surprising (and as far as Anabelle is concerned, likely unwanted) outcome will occur. Franklin will not become Anabelle’s executor. Instead, Edward’s executor (let us call him “Nick”) will become the executor of both Anabelle and Edward’s estates.
Anabelle would likely be taken aback to discover that Nick (whom she never met) ended up as executor of her estate. Similarly, the beneficiaries of her estate will likely also be surprised. This rather strange turn of events is due to what is sometimes known as the “chain of executorship”.
In a scenario like this, Section 145 of the Wills Estates And Succession Act, S.B.C. 2009, c. 13 (“WESA”) is engaged. It states:
If a deceased will-maker was an executor of a person who died before the will-maker, the executor of the deceased will-maker has all the rights, powers, rights of action and liabilities of the deceased will-maker with respect to the estate of the deceased person.
While this provision of WESA can come in to play due to scenarios like the one just described, where poor drafting led to an unexpected outcome, it could also occur simply because Edward dies mid-administration and Franklin is dead, or because no alternate was named (i.e. Anabelle never named Franklin, or anyone else, as an alternate executor). In such situations, the chain of executorship provides an efficient solution to the question of “who is in charge of Anabelle’s estate now?”
So far, we have seen what can happen if Edward dies mid-administration and has named an executor in his will, but what if Edward does not have a will (i.e. dies “intestate”)? In this scenario the chain of executorship is broken, and someone will have to apply to the court to be appointed as administrator of the estate. An administrator of an estate is most easily understood as an individual appointed by the court with most of the same responsibilities and powers as an executor. Section 131 of WESA states:
If a person dies leaving a will, and the executor named in the will renounces executorship or is unable or unwilling to apply for a grant of probate, or if no executor is named in the will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority:
- (a) a beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;
- (a.1) a person nominated by a beneficiary if that person has the consent of the beneficiaries representing a majority in interest of the estate, including the beneficiary who nominated the person to apply for a grant of administration with will annexed;
- (b) a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;
- (c) any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.
If the court feels that it is appropriate to appoint someone who is not covered by section 131, section 132 provides that it “may appoint as the administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.”
Despite the existence of mechanisms like those contained in sections 131, 132, and 145 of WESA, or perhaps because of the unexpected outcomes that such mechanisms can lead to, it is prudent to put a carefully drafted will in place that provides for at least one, and ideally more than one “layer” of alternative executors. As you can see from the above, doing so can help to minimize the chances of a stranger ending up in charge of the administration of your estate!
If you have any questions about this or any other estate planning or administration topics, please get in touch.
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