I had three similar inquiries this past week. Each couple made wills when their children were young. In the horrible event of them both dying before their children grew up, they named a responsible adult in their lives (sibling or parent) as executor and they named guardians for their children.
Their wills had trust provisions ensuring that their children鈥檚 inheritance would be managed until some appropriate age, typically age 25.
Their children are now adults, with children of their own.
They now want one (or more) of their children to be executor once the 2nd of them passes away.
And they wonder about the trust and guardianship provisions that are no longer applicable.
Do they need to incur the expense of new wills?
Before I answer that, how about high fives to each of them!
Excellent having an estate plan put in place when you have minor children. I gave a couple reasons in my column published July 14th, 2024, but perhaps I should dedicate a column solely to that issue.
And excellent that they are consulting with a lawyer to review their estate plan. You can read my advice about reviewing your will in my column published May 5th, 2024. I would have recommended a review more often than 20 years but better late than never!
First, I鈥檒l address the inapplicable trust and guardianship provisions.
They鈥檙e nothing to worry about. They have become a bunch of irrelevant words that won鈥檛 get in the way. There鈥檚 no need for a new will to remove them.
The executor provision is more interesting.
One way to deal with it is to consider asking the person you have named as executor to not take on the role.
In that circumstance, section 131 of the Wills, Estates and Succession Act kicks in (a link to that section can be found here ().
It says (with my paraphrasing) that if you die with a will and your named executor renounces executorship or is unable or unwilling to fill that role, the court can appoint someone else to fill that role.
It gives a list of priorities.
Top of the list is a beneficiary who has the consent of the other beneficiaries.
Next is a person nominated by a beneficiary, with the consent of the beneficiaries.
Let鈥檚 consider how that would play out.
The second of you and your spouse dies. Your sister is named executrix but has agreed not to take on the role.
Your children can decide that one or more of them will administer the estate. Or they could agree to appoint someone else.
You could be involved in making those decisions now so that your children have clarity.
As long as everyone agrees, any added expense in the administration of your estate should be minimal.
If you prefer to eliminate uncertainty and have the executor provision in your will properly dealt with, consider making the changes by way of a 鈥渃odicil鈥�.
Don鈥檛 let that word scare you. It is simply a document that refers to your will and sets out how it is changed. It doesn鈥檛 even have to be called a 鈥渃odicil鈥�!
I鈥檝e written about how to do that without the assistance of a lawyer in previous columns published April 21st and 28th, 2024.
There might be important reasons, other than executor designation and expired guardianship and trust provisions, to have your will redone. Please ensure that you periodically review your will with a lawyer as I鈥檝e recommended in the column I referenced.
But if these are the only issues to be addressed, maybe I鈥檝e saved you a few bucks.
If you have difficulty finding any of the columns I鈥檝e referenced online, e-mail me at paul@hlaw.ca and I鈥檒l help you.
And please, if you have any end-of-life related column topics you would like me to write about, please let me know.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul鈥檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul鈥檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
