A Personal Representative (or Executor) is the person(s) named in a will to carry out the directions contained in that will.
The duties of the Personal Representative include:
- locating all of the person’s assets (everything the individual owned);
- paying the funeral costs;
- applying for probate (a legal procedure confirming the will can be acted upon), where necessary;
- paying the person’s debts (money that is owed) and taxes; and,
- distributing the remaining money and property according to the instructions in the will.
However, sometimes it happens that the Executor of a Will dies before completing all of the tasks of the Personal Representative. Who then will finalize the administration?
A) If the Executor dies before there is a Grant of Probate of the will, sections 39, 41 and 42 of the Estate Administration Act (“EAA”) are applicable:
Substitute personal representative
39 If a will contains a provision for a substitute personal representative that is operative if a personal representative named in the will (a) dies before the testator, (b) dies at the same time as the testator, or (c) dies in circumstances rendering it uncertain which of them survived the other, and the named personal representative dies before or at the same time as the testator or in circumstances rendering it uncertain which of them survived the other, the substitute personal representative is deemed to have the authority to administer the estate as provided by the will.
Death of named personal representative
41 If the personal representative named in a will survives the testator but dies without obtaining a grant, the authority of that personal representative with respect to the administration of the estate and any trusteeship under the will cease, and any application for a grant must be made and dealt with as if that personal representative had never been named as a personal representative or trustee.
42 If there are 2 or more personal representatives of the estate of a deceased person and one or more of them die, their authority and powers vest in the surviving personal representative or personal representatives.
In other words, the surviving joint named Executor(s) if there are any, or else, the alternate named Executor(s) appointed in the Will, will become the Personal Representative. If there is no surviving joint Executor or alternate appointed Executor, section 13(1)(b) of the EAA sets out who has priority to make the application (ie. intestacy rules – closest surviving family members).
B) If the Executor dies after the Grant of Probate by the Court Of Queen’s Bench Of Alberta (Surrogate Division) has been issued, then the following is applicable;
1) Section 14(1), Trustee Act:
14(1) When a trustee dies or refuses to act or becomes incapable or unfit to act in the trusts or powers reposed in the trustee, it is lawful for the person empowered to appoint new trustees by the deed, will or other instrument creating the trust, or, if there is no such person or no such person able and willing to act, then for (a) the surviving or continuing trustee or trustees for the time being, (b) the executor or the administrator of the last surviving and continuing trustee, or (c) the last retiring trustee, to appoint in writing any other person to be a trustee in place of the trustee dying or refusing to act or becoming incapable or unfit to act.
2) Section 37(2), Surrogate Rules:
37 (2) If a deceased was the personal representative of a testate person and the deceased did not appoint a personal representative for the deceased’s estate, another person may apply for a grant of administration with will annexed of the unadministered property of the testate person.
In other words, after a Grant of Probate, the surviving Trustee(s) if there is one, or else, the Executor of the last surviving Trustee, shall appoint the new replacement Trustee. That replacement Trustee will have to apply for a Grant of Administration with will annexed of the unadministered property.
The foregoing would seem to be a codification of the common law rule on “chain of executorship”, as set out for example in Re Aikins Estate (1963) 41 W.W.R. 226. Friesen, Surr. Ct. J. wrote:
‘… if a sole executor, or the survivor of several executors, having proved the will, dies without having completed the administration of the estate, his executor when he proves the will becomes the executor of the original testator. It is only an executor who has proved the will who can transmit the executorship, and, therefore, if the executor named predeceases the testator or dies without having taken probate there must be an administration.’
Please contact our law firm if you have any questions or require legal advice about Probate or the Administration of Estates.