Dying without a Will (Intestate): Who Acts as Executor?

If someone dies intestate (without leaving a valid will), the courts determine the estate’s distribution and the executor of the estate. In a past blog post, we discussed how an estate is distributed when someone dies intestate. In this post, we’ll identify who can be appointed executor of an estate when someone dies without leaving a valid will.

The job of an executor can be time-consuming and stressful, but it is highly important. The executor is crucial to the correct administration of an estate. Some of the responsibilities of an executor include planning funeral arrangements, locating all of the testator’s assets, liquidating assets for distribution, filing tax returns, paying any debts owed, and distributing the estate. When the deceased does not leave a valid will, the complexity of these tasks can increase as the executor does not have specific directions to follow. In appointing an executor, the courts must be sure that the person will take the job seriously and handle the estate as the testator intended.

Executor Priority List

For the courts to appoint someone as executor of an intestate estate, interested parties must apply. The person with the highest priority on the list described in the Wills, Estates and Succession Act (WESA) will become the executor.

Section 130 WESA

As described in section 130 of WESA, the courts will use the following order of priority:

1. The spouse of the deceased person or a person nominated by the spouse;
2. A child of the deceased person having the consent of a majority of the children of the deceased person;
3. A person nominated by a child of the deceased person if they person have majority consent of the deceased’s children;
4. A child of the deceased person not having the consent of a majority of the deceased person’s children;
5. A successor other than the spouse or child of the deceased person, having the consent of a majority of the other successors including the successor who applies for a grant of administration;
   • A person, other than the spouse or child of the deceased person, nominated by a successor of the deceased if that person has the consent of a majority of the other successors, including the successor who nominated the person to apply for a grant of administration;
6. An intestate successor other than the spouse or child of the deceased person, not having the consent of a majority of the other successors, including the successor who applies for a grant of administration;
7. Any other person the court considers appropriate to appoint, subject to the Public Guardian and Trustee’s consent.

Executor Priority in Practice

In simple terms, the order of priority goes: the spouse, a person nominated by the spouse, a child with majority consent, a person nominated by the children, a child without majority consent, a successor of the intestate estate and lastly, any other interested party. ‘Interested parties’ can include registered professionals such as lawyers and accountants in these circumstances.

For example, if a person dies intestate without a spouse, but with three children (two daughters and one son).

While the executor order of priority is clear if one dies intestate, it’s always best to write a valid will naming exactly who you want to be named executor of your will. If you need help drafting your will, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.