What Happens if the Executor Dies Before the Testator?
When the personal representative (executor) is alive, he or she may apply to the court for a Grant of Probate. When the personal representative dies before the testator, the process changes.
A Grant of Administration in Alberta is issued by the court to appoint a personal representative to administer the estate:
- When a person dies without a will (intestate).
- There is a will, and all the appointed personal representatives have died.
- There is a will, and all the appointed personal representatives are unwilling or unable to take on the responsibilities.
In the last two situations, the court will issue a Grant of Administration with Will Annexed, and appoint a personal representative to administer the estate.
(Note: the term “personal representative” is the current legal term used to refer to a n executor/executrix, administrator/administratix, and jucidial trustee)
Grant of Administration: Intestate
When there is no evidence of a will, and a person or persons wish to take on the responsibilities of administering the estate, they must first conduct a thorough search to ensure that is the case and, if so, they can apply for a Grant of Administration.
Priority, according to the Surrogate Rules, is to the family of the deceased in the following order:
- The surviving spouse or adult independent partner of the deceased
- The children of the deceased, when there is no surviving spouse or adult independent partner, or if they are unwilling or unable to act
- The grandchildren of the deceased, when there are no children, or if the children are unwilling or unable to act
- Other lineal (blood) descendants of the deceased
- Parents of the deceased
- Siblings of the deceased
- Other persons related to the deceased
In Alberta, the Grant of Administration cannot be given to more than three people at once, except by court order. Priority is usually given to Alberta residents, except for spouses and adult interdependent partners.
When there is more than one family member eligible to apply for a Grant of Administration, the family should decide who will apply and who will renounce their appointment.
A person entitled to a Grant of Administration may nominate someone else to be the administrator.
Grant of Administration With Will Annexed
If no one is willing to assume the responsibility, the court will issue a Grant of Administration with the Will Annexed, appointing a personal representative to administer the estate. In the case of a bankrupt estate, the court may appoint a creditor of the estate.