A thoughtful estate plan, featuring an up-to-date will, helps ensure your loved ones and assets are protected now and in the future.

Preparing a power of attorney can provide comfort and peace of mind to both you and your loved ones when it becomes difficult or impossible for you to make your own decisions about your finances or personal care.

Whether it is a will or power of attorney, you want to appoint a reliable individual(s) who has the time and knowledge to carry out the duties according to your wishes and best interest.  It is prudent to appoint a substitution (also known as contingent or alternate) in case the primary person(s) is unwilling or unable to act.

What happens if the primary person(s) is unwilling or unable to perform the role of the executor in a will or attorney in a power of attorney?  This article discusses these situations.

We assume all the parties reside in Ontario.

FOR AN EXECUTOR:

Unwilling to act as executor

An executor named in the Will may decline to take on the role by renouncing the appointment. This individual may only renounce if he/she does not fulfill any of the functions of an executor such as filing an application for probate.

Someone who has begun acting as an executor may not renounce, but they may resign. A resigning executor must apply to the Court to be released from their duties.

If the named executor (or alternative executor) in a will declines to act or cannot act, then the beneficiaries may nominate another person to act as executor.

The Estates Act of Ontario addresses what is supposed to happen (in section 29), assuming an application for probate has not yet been granted.

The client’s family should consult with their own lawyers to confirm how to nominate another person to act as executor and what information needs to be included in the application.

If no one is willing to act as an executor, the family should consider appointing a corporate trustee to handle the estate. Most major financial institutions have corporate trustees who will manage the estate for a set fee. The Royal Trust provides estates and trust services and can be reached at 1 (855) 833-6511.

If no one is willing to act as an executor, the Public Guardian and Trustee, an Ontario government body, may be appointed but only as a last resort.

Unable to act as executor

An example: If ‘B’ is named in the Will as the executor of A’s estate and ‘B’ predeceases ‘A’, you have to first look back at the Will of the deceased. If there is an alternate executor named in the Will, that person has the right to apply to be executor. If there is no alternate named in the Will, then we look to the Ontario Trustee Act which states that the executor of the deceased executor can step into their shoes.

In Ontario, there is a presumption that the living spouse, followed by the closet living next-of-kin of the deceased, has the first right to apply to be the Estate Trustee. This is not an automatic process as the court needs to officially appoint them. If no immediate family member applies, any other Ontario resident can submit an application. Ultimately, if no one is willing to act as an executor, the family should consider appointing a corporate trustee to handle the estate.

FOR A POWER OF ATTORNEY:

Unwilling to act as attorney

In general, if an attorney does not wish to act as the power of attorney and he/she has not yet started acting, then there are no special steps to resign. That said, it would be advisable to resign in writing and a confirmation of receipt should be obtained.

If the attorney has already started acting, then under the Ontario Substitute Decisions Act, there is a procedure to formally resign. The attorney must deliver a copy of the resignation to the grantor and other attorneys or substitutes acting under the POA. There may be other requirements to deliver notice to other individuals if certain conditions are met. Moreover, the attorney would need to make reasonable efforts to notify persons with whom they have previously dealt on behalf of the grantor and with whom further dealings would be required.

Unable to act as attorney

The authority of a general power of attorney automatically ends if the attorney becomes incapable or dies. If the client named an alternate or more than one attorney, the other attorney can step in. If no one else was named as an alternate or other attorney, a family member, relative or close friend can apply to court to become a “Committee of Estate” (to manage the client’s financial affairs). A trust company such as RBC Royal Trust, may also apply. If an appropriate person is not available, the Public Guardian and Trustee (PGT) can take steps to become Committee of Estate.

This article is written to provide a general perspective.  Please speak with a qualified legal expert to obtain professional advice on your situation.