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What happens if the executor dies before the will-maker?

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What happens if the executor dies before the will-maker?
My mother’s will named my sister as sole executor. My sister died before my mother. On my mother’s passing, who becomes the executor of her will?

What happens if the executor dies before the will-maker? - Stephen Hsia

Sometimes a will names an alternate executor. If the first-named executor is unable or unwilling to do the job (or passes away before the will-maker), then:

  1. The alternate executor can become the new executor, after proving to the court that the first-named executor has died or is unable to act as executor. (Note: If the first-named executor is unwilling to act as executor, they’ll need to file a document with the court called a notice of renunciation.)  
  2. If there’s no alternate executor, then the executor of the deceased executor (in this case, your sister’s executor, if your sister had a will) would have all the same rights as that deceased executor in relation to the first estate. Effectively, this means the executor’s executor could administer both estates.
  3. If the will-maker’s executor died without a will or the deceased executor’s executor refused to take over the administration of the deceased will-maker’s estate, then someone would then need to apply for a grant of administration with will annexed in order to deal with the estate. The person who the court approves is called the administrator. The law in BC sets out the priority of whom the court may appoint as administrator, in this order:
  • A beneficiary (or a person nominated by that beneficiary) who has the consent of other beneficiaries who have a majority interest in the estate.
  • A person nominated by a beneficiary, if that person has the consent of the beneficiaries who represent a majority interest in the estate.
  • A beneficiary, who doesn’t have the consent of other beneficiaries.
  • Any other person, including the Public Guardian and Trustee, with consent of the Public Guardian and Trustee.

Where the will-maker is still alive, it would be advisable for them to draft a new will or codicil appointing a new executor if they are able to do so.

Stephen Hsia

Stephen Hsia

Stephen Hsia is a lawyer with Fasken in Vancouver. He practises in the area of wills, estates, trusts, personal and tax planning, and charitable giving.

Fasken
Written June 12, 2019

The procedure for applying for a grant of administration with will annexed is similar to the application for a grant of probate. See our guidance on probating a will for the steps involved. If you are the will-maker and your executor has passed away, see our page on choosing an executor.