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?
Emma
Vancouver, BC
Sometimes a will names an alternate executor. If the first-named executor passes away before the will-maker, then the alternate executor can step into the role of executor. In applying for probate, the alternate will need to prove to the court that the first-named executor has died.
If there is no alternate executor named, or the alternate is unable or unwilling to administer the 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 type of situation, in this order:
A beneficiary who has the consent of the beneficiaries who represent 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 their consent).
We have a step-by-step guide to applying for a grant of administration.
One final point. Where the will-maker is still alive, it is advisable for them to draft a new will or codicil appointing a new executor if they are able to do so.
Stephen Hsia
Miller Thomson