Death, Discharge, Or Removal Of Personal Representative Before Completing The Administration Of An Estate

In This Volume

OVERVIEW OF APPENDIX

REFERENCE: Wills, Estates and Succession Act, ss. 102, 104, 145, and 157 to 161

A personal representative may die before completing the administration of an estate or may wish to be discharged or removed. The administration of the estate must be completed. Depending on the situation, there are a number of procedures by which this may be accomplished.

Situations

The situations are:

where there is more than one executor or administrator and only one dies;
where the sole executor or a surviving executor dies testate;
where the sole executor or a surviving executor dies intestate;
where the deceased leaves a will but does not name an executor, or the executor renounces;
where the administrator dies;
where the personal representative wishes to be discharged; or
where the personal representative is removed from office.

PRACTICE

Where There is More Than One Executor or Administrator and Only One Dies
- (a) In the case of an executor, if there is no substitute named in the will, the survivor(s) continues to act.
- (b) In the case of an administrator, the survivor(s) continues to act.
There is no transmission and all that is required by the land title office is proof of death.

If a substitute executor is named in the will, it is necessary for that person to obtain a grant of probate from the court and to apply for transmission before acting.
Where the Sole Executor or a Surviving Executor Dies Testate
The executor of the deceased executor assumes the duties of administering the estate.

The land title office requires a copy of the grant of probate with the will annexed of the deceased executor, certified by the registrar of the court.

The executor of the deceased executor will have to apply for transmission and will then be vested with the same powers as the original executor.

The registrar will register the indefeasible title or charge in the name of the new executor as follows:

E.F. (ADDRESS), EXECUTOR OF THE WILL OF C.D., DECEASED, (doc#), THE EXECUTOR OF THE WILL OF A.B. DECEASED, (doc#).

If, in the above example, the deceased executor, C.D., was a beneficiary under the original will and omitted to give themselves a transfer, the new executor, E.F., holds in trust to convey to the beneficiaries of C.D.
Where the Sole Executor or a Surviving Executor Dies Intestate
In this case, application is made to the court for the appointment of an administrator “de bonis non” who then is issued with a grant of administration.

The land title office requires a copy of the grant of administration “de bonis non” certified by the registrar of the court.

The administrator “de bonis non” will have to apply for transmission and then will be vested with the same powers as the original executor.

The registrar will register the indefeasible title or charge in the name of the administrator “de bonis non” as follows:

C.D. (ADDRESS), ADMINISTRATOR WITH WILL ANNEXED “DE BONIS NON” OF ESTATE OF A.B. DECEASED. SEE (doc#) AND (doc#).
Where the Deceased Executor Leaves a Will But Does Not Name an Executor or the Named Executor Renounces
Where the deceased executor leaves a will but does not name an executor or the named executor renounces or is incapable of taking out probate for whatever reason, the court will appoint an administrator “de bonis non”.

The reasons for the appointment of an administrator must be noted in the grant of administration.

The administrator will have to apply for transmission and then will be vested with the same powers as the original executor.

The registrar will register the indefeasible title or charge in the name of the administrator as follows:

C.D. (ADDRESS), ADMINISTRATOR WITH WILL ANNEXED “DE BONIS NON” OF ESTATE OF A.B. DECEASED. SEE (doc#) AND (doc#).
Where the Administrator Dies
In this case, application is made to the court for the appointment of an administrator “de bonis non”, who then is issued with a grant of administration.

The land title office requires a copy of the grant of administration “de bonis non” certified by the registrar of the court.

The administrator “de bonis non” will have to apply for transmission and will then be vested with the same powers as the original administrator.

The registrar will register the indefeasible title or charge in the name of the administrator “de bonis non” as follows:

C.D. (ADDRESS), ADMINISTRATOR “DE BONIS NON” OF ESTATE A.B. DECEASED. SEE (doc#) and (doc#).
Where the Personal Representative Wishes to be Discharged from Office
A personal representative may at any time apply to the court to be discharged from office. The court usually grants the discharge and appoints a new personal representative.

The new personal representative must apply to the land title office for transmission of the estate to the substitute personal representative. The application must include a certified copy of the court order.

The new personal representative is vested with the same powers as the original representative.

In the case where the administration of the estate is completed, or where the court decides the appointment of a new personal representative is not required, no new representative is appointed.

For example, in the case of an executor of a will the registrar will register the indefeasible title or charge in the name of the substitute personal representative as follows:

A.B., ADDRESS, EXECUTOR OF THE WILL OF C.D., DECEASED, SEE (doc#) AND (doc#).

The first document number in the example above is the application number assigned to the original transmission application. The second application number refers to the application for transmission to the substitute personal representative.
Where the Personal Representative is Removed from Office
It is also possible that a personal representative may be removed from office by an application to the court on behalf of a person who has an interest in the estate. In this case, the court will appoint a substitute personal representative.

The substitute personal representative will have to apply to the land title office for transmission of the estate to the substitute personal representative. The application must include a certified copy of the court order.

The substitute personal representative is vested with the same powers as the original representative.

For example, in the case of an executor of a will the registrar will register the indefeasible title or charge in the name of the substitute personal representative as follows:

A.B., ADDRESS, EXECUTOR OF THE WILL OF C.D., DECEASED, SEE (doc#) AND (doc#).

The first document number in the example above is the application number assigned to the original transmission application. The second application number refers to the application for transmission to the substitute personal representative.