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Wednesday, August 5, 2009

Do you have to be an executor if you don't want to?

In this blog, I like to try to answer the questions that I've been asked by clients repeatedly over the years. This is one of those questions. I am often asked by individuals who have been appointed as an executor in someone's Will whether they must act as executor even though they really don't want to.

The short answer to the question is no, you can't be forced to be an executor. If a person passes away and has named you as his or her executor, you have the choice either to be the executor or to renounce (waive) your right to be the executor.

But, as with all general rules, there is an exception. If you have intermeddled in the estate, you will have no choice but to carry on as executor until the court discharges you. In other words, if you are going to renounce, you had better do it right at the very beginning, before you handle anything to do with the estate. Intermeddling is a legal term that means you have done something with the deceased's assets that leads people to believe that you intend to be the executor. For example, you might write a letter to a bank saying that you are the executor and asking them to freeze an account. This would lead the bank to believe that you plan to act as executor of the estate. Taking possession of any of the deceased's assets would also be considered to be intermeddling.

There have been plenty of cases through the courts to determine what is intermeddling and what is not. It's clear that if the only thing you do for the estate is pay the funeral expenses, you will not be considered to be intermeddling.

Keep in mind that if you are legally bound to be the executor but you refuse to do anything or you do it sloppily, and the estate suffers financial loss because of your actions, you could well be on the hook personally to repay those financial losses.

If you are named as an executor, you should consider whether you are really able and willing to carry out the job. You should think about personal liability for your mistakes, the complexity of the estate, the nature and value of the assets, the demands on your time, the expertise that might be needed, conflicts with family members or beneficiaries, the need to post a bond, and whether you will have any trouble getting fair compensation from the estate. Obviously you need to think about all of this before you take any action on behalf of the estate.

If you've been named executor of an estate and you really feel overwhelmed by it, remember that you can walk into any Scotiabank branch and ask them to put you in touch with the staff in the trust department who administer estates every day. You might be surprised at how many options are open to you at that point, and there is no cost to simply asking about our services. If you're in Alberta, feel free to call me personally to talk about it.

2 comments:

  1. Co-executors. My brother and I are named as co-executors of our deceased Mother's estate. We get along fine but my brother would prefer to renounce as executor to simplify the process for probate forms/filing, etc. I cannot find this answer in the Probate kit. Once Forms 12 & 11 are completed, would NC1, 2, etc references to 'personal representative' be soley the remaining executor (ie: forms would not include renounced co-executor name, address, etc.)? Thank you

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    Replies
    1. Yes, all of those forms would be completed as if you are the one and only executor, because that is exactly what you will be. The situation will be explained to the court in document NC2, at the beginning, where you describe your right to apply for probate. You would say that you were named in the will and that the other named executor renounced. The renunciation signed by your brother would be attached to the NC2 when you file your documents at the probate court.

      Lynne

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