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Tuesday, May 25, 2010

What happens if my executor lives outside the province?

This is a very common question, given how families these days are spread out all over the country and perhaps even beyond. If you've appointed someone outside the province as your executor, you need to be aware of the rules about that. Although I am quoting Alberta legislation in this post, other provinces also have similar rules.

If the executor you've named in your Will lives outside of Alberta, the Surrogate Rules of Court which govern estate and probate matters say that before your executor may take control of your estate, he or she must post a bond. The bond is to be for the full amount of your estate. The point of the bond is to provide some assurance that the creditors and beneficiaries of the estate will be paid before the executor leaves the province.

So, if this is your situation, what can you do? There are solutions available.

A popular idea is to appoint co-executors, with one being your out-of-province executor and the other living in Alberta. This refers to two (or more) executors who must work jointly to administer your estate. As long as one of the executors lives in Alberta, you will not have to post a bond.

Another good idea is to appoint a trust company, which is resident in almost every province and territory in Canada. The trust company can act alone as your executor, or can be a co-executor with someone else.

If you've been putting off getting your Will made because you're stuck on the question of who to appoint as your executor, a better idea is to sit down with an estate-planning lawyer and ask for ideas. You just might hear something that works for you.

33 comments:

  1. My grandfather passed away over three years ago. My uncle (and his young son) were named executors of his will. All assets were to be divided equally between my father and his brother (the executor). My grandfather passed away in Ontario but his Will had been drawn up in Calgary and my father lives in Winnipeg. The lawyers in Calgary REFUSE to give my father any information regarding the estate, my uncle has left the country and refuses to answer any letter sent through the lawyers. No indication of what the assets were or where they are now. There is a lot of animosity between my father and his brother. What can my father do?

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  2. Thanks for your question. This is certainly an unusual situation, and in fact some of this doesn't really hang together for me.

    How do you know that the assets were to be divided between your father and uncle? Is that information coming from the Will itself, or is that something that you assume? In Alberta, every beneficiary under a Will must be notified by registered mail of the gift they will get under the Will (I mention this because you said there is a lawyer in Calgary involved). If your father received a notice like that, then you know that's what is in the Will and that your uncle is applying for probate.

    If, however, you and your father have never seen the Will and don't really know for sure what it said, it could be that your father is being refused information because he isn't a beneficiary named in the Will.

    On the other hand, if your father is in fact a beneficiary, then there is something unexplained going on.

    You said your grandfather passed away in Ontario. Was that his usual place of residence when he died, or was he just there visiting? Usually a Grant of Probate is given in the deceased's usual place of residence. This isn't carved in stone, as sometimes it can be obtained in an area where the deceased owned property.

    There are several possibilities for what could be going on here, but I think the first thing you need to do is get your hands on some further facts. If your father believes that there is a probate application going on in Calgary, he should do a search at the Court of Queen's Bench (Surrogate Court) in Calgary to find out what has been filed. He is a son of the deceased and as far as he knows, a beneficiary under the Will, so there should be no problem getting a search done. It isn't expensive and it could answer a lot of questions.

    If there is no probate application in Calgary, do a similar search in the courthouse nearest to where your grandfather passed away in Ontario.

    The probate application contains a copy of the Will, a copy of the full estate inventory of assets and debts, as well as other information.

    Start there, and see where that takes you.

    Lynne

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  3. Do you happen to know if this law is the same in Ontario? I am co-executor of my Aunt's will. My cousin (the other executor) lives here in Ontario, and I am in the US teaching so I'm there 9 mths of the year and up here the rest.

    Would appreciate all help! Thank you.

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  4. WHAT HAPPENS TO WILLS THAT ARE HELD AT A LAWYERS OFFICE WHEN THAT LAWYER RETIRES.

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    1. If the lawyer worked in a firm in which he or she had partners, the partners of the firm would most likely simply carry on holding the wills. Many lawyers will write a letter to clients for whom they hold documents such as wills to let them know about their retirement and ask whether they want their original documents back. If the lawyer worked alone, and didn't write a letter like that, you might have to contact the provincial law society to get an address for the lawyer so you can ask where your document is. If a lawyer retires suddenly, because of a heart attack or car accident or something, the provincial law society will send in a custodian to look after the files and contact the clients.

      Lynne

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  5. What happens if the executor lives outside the country? For example, the family member died in BC and the estate is all is BC, but the executor lives in the US?

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    1. It's legally possible to have an executor who lives in another country, but logistically it can be pretty difficult. The US executor will be required to post a bond in the full amount of the estate before he or she will be granted probate. Also, expenses on the estate will be higher because of trips back and forth, couriers, long distance calls etc. A good way to resolve this is for the executor to hire a trust company in BC to act as his or her agent.

      Lynne

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  6. I am co-executor of my mothers estate along with my sister. I live in Alberta and my sister lives in Australia. (Our mother lived in Alberta.) When we complete the affidavit's do we need a section stating "Sworn and affirmed before a Notary Public at Caines, Australia" as well as the "Sworn and affirmed before a Commissioner for Oaths at Calgary, Alberta"? Or this dealt with in a different way.

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    1. You need both of those. Each executor needs to make the affidavit under oath, so it has to be done that way.

      Lynne

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  7. Hello Lynne,

    I am an Executor of my deceased mother's estate as well as one of 2 the beneficiaries. Neither of us is an Alberta resident.

    It is my understanding that it is possible to get some sort of waiver/release from the "bond" requirement. Can you speak to this? BTW, I have ordered your book/kit. Is this question answered in there?

    John

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    1. Hi Johnny,
      I assume the reference to Alberta is included because that is where your mother resided at the time of her passing.

      Yes, it is possible to be released from the bonding requirement. This is done at the time you apply for probate of her will. You will need form NC17 - affidavit to dispense with bond. This is for executors to sign. You will also need form NC18 - consent to waive bond - for the beneficiaries to sign.

      There is no guarantee that your request to dispense with bond will be granted by the judge, but the forms I mentioned are the process you would use to ask.

      Yes, I do cover this in my book.

      Lynne

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  8. Hi Lynne,
    I am co-executor of our mom's estate along with my sister who lives in Australia. I will be distributing all of the NC19 notices from Alberta via registered mail. The notices will be signed by both of us. Can I sign the NC27 affidavit alone, since I distributed the notices, or do we both sign?
    When we sign affidavits she will have it notarized in Australia. Can she scan and send the notarized copy to me for signing her or does she have to send snail mail so I have the original?
    Your book provides excellent information but some of these things get complicated in my situation.
    Thanks,

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    Replies
    1. Yes, you can sign the NC27 alone, since, as you say, you are the one who actually sent the notices. And I'm glad the book is helpful. I went into so much detail, and yet you're right, there are always complications that make it hard to cover everything!

      Lynne

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  9. My parents are long term Toronto residents. I am the eldest son and live in Ohio (green card). My brother lives in Toronto. My folks have split their estate 65/35% in my favor. My brother and I are co-executors. Will I have a problem carrying out my executor function as a non-resident co-executor?
    Many thanks for this service.

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    Replies
    1. Hi Martin,

      Thanks for reading all the way from Ohio.

      You and your brother should not have legal problems working as co-executors. Normally an executor residing outside of Canada is required to post a bond, but that requirement does not exist where a co-executor lives in Canada. So, that should not affect you.

      There will be some logistical annoyances, of course, as all documents must be signed by both of you. All of your sworn documents will have to be notarized to be used in Canada. But that is minor, I think.

      Best of luck,
      Lynne

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    2. Both our sons are executor of our estate.One son resides in CO. US,but as dual citizenship,our other son resides in NB. Canada. Would our son who lives in the USA have to post a bond if the other is deceased

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  10. My mother died in Sudbury Ontario in 2009 and named me as executor and sole beneficiary of her estate. I live in BC. She had no assets at the time of her death but following her death her estate received a hospital benefit in the amount $11,250. Upon her death I arranged and paid for funeral, cancelled and paid in full all her utilities. I sent death certicate and cancelled her CPP, OAS and GIS. I closed her bank account and filed her income tax for the year in which she passed. The only thing I have not done is applied to administer her will so that I can access the hospital benefit insurance amount which I deposited in an estate acount I opened in my BC credit union as I had already closed her bank account by the time this cheque arrived. The money has just been sitting there since then as I did not have the heart or the time to deal with making application to be administrator. Because the amount is over 10,000 my credit union will not release the funds until I have a certificate of administration. In these circumstances what is the most straightforward way for me to deal with this so I can access this money and close the estate account. I currently live in BC though at the time of her death I was living in Ontario.

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    1. This comment has been removed by the author.

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    2. Have you asked the credit union to accept a letter of indemnity instead of a certificate of administration? Some banks and credit unions will agree to this when there is only one asset in the estate, and when the cost of getting probate or administration is high compared to that asset. The effect of the letter would be that if other beneficiaries should materialize and demand their share of the estate money, you would indemnify the credit union for having paid it to you. It's worth asking about.

      If that won't work, you will have to go through the traditional process through the court. It seems to me that with only one executor, one beneficiary and one asset, you should be able to use a do-it-yourself kit rather than using a lawyer.

      Lynne

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  11. If a Beneficiary lives in Ontario, however Estate is in BC, must the Beneficiary physically go to BC? Also does the courts ask the Beneficiary why they disagree with the acounting when passing accounts?

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  12. Hi. My father passed away recently in Toronto. He was a resident of Quebec many years but resided in Ontario upon his death. He named me as the executor, however wanted all assets to be split between my sister and I. We both reside in the us. I have contacted the banks and need a probate. Is it possible to get a probate in Quebec, even though my dad passed in ontario. We have family there and prefer to contact an attorney there His will was made in Ontario.

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  13. Hello, both my aunt and I are executors on my mother's will. My aunt lives in Sask. (where my mom had lived) and I live in BC. I assume both of our signatures need to be on all the probate forms but do both of us need to be present when signing and the forms are "sworn in"?

    Your site is wonderful, thank you. Trying to figure this out is complicated enough without the grieving part.

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    Replies
    1. No, you don't both have to be present - if by that you mean together - for signing. The probate should be happening in Sakatchewan, so your aunt will sign and swear the documents there. Then she'll send them to you, and you will go to see a lawyer or notary public to sign and swear them in BC. This is common, so the courts are totally familiar with it.

      Lynne

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  14. Hi,
    my father (Albertan ) passed away and listed me ( BC resident ) as the executor. I'm aware of bonding requirements, but would like to avoid this. May I take up residency in Alta. to avoid the bond requirements? If so what would define me as an Albertan? Driver's license, health care, purchase property?
    Thanks,
    Bob

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  15. HI,
    my Albertan father passed away in Spring 2014 in Calgary, I'm listed as executor, but live in BC. Can I move to Alberta to avoid bonding requirements? What would make be an Albertan in the eyes of the surrogate court?

    Thank you for your service to the community here.
    I

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    Replies
    1. Certainly you can move to Alberta and reside there, but is that really the easiest way to get around bonding? You will be required to swear under oath as part of the NC2 affidavit that you are a resident of Alberta. I'm not aware of any length of time that must pass before you are considered a resident. Just be aware that you may not charge the estate for moving costs or any other expenses associated with moving to Alberta even if that's your only reason for going there,

      Lynne

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  16. My brother and I are co-executors. He lives in the province of my deceased parent. Is there a form I can use that will allow him to sign on my behalf to get paper work and sell items like the car?

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    1. From the wording of your question, it sounds as if you don't want to quit being a co-executor. There is no form you can sign to give your brother your authority. Some documents, such as the probate application, sale of a home, etc, that will require both signatures and you're just going to have to use couriers and/or scanners to get that done.

      Lynne

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  17. Hi, I live in the Dominican Republic but still a CDN resident. Can I be the POA and my brother the Executer? thanks

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    Replies
    1. POA and executor for whom? And which country do they live in?

      Lynne

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    2. Thanks for taking my question. My widowed mother lives in Ontario. My brother lives there as well. He is at the moment POA and Executor. My mother wishes me to be the POA only. I live in the Dominican Republic. I am Canadian. He says that I can't be POA as I am not a resident of Ontario. Can I be POA? Thank you.

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  18. Hi Lynne, thank you very much for posting this article as it's so difficult to find info and verification in regards to these questions. In regards to someone who lives outside of AB being an executor. You mentioned that the executor will have to post a bond up to one time of the estate. What's the procedure in posting a bond?

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  19. Hi, Lynne
    I received a call on December 25 ,2015 from my dads power of attorney.
    I was informed the my Dad drove down a road that is not snow plowed in the winter time ,and his truck got stuck and he was found, but died of hypothermia.

    The power of attorney would like me to sign the executor rights over to him.
    I do not know him he is not family, the problem is I live in Vancouver, BC, and the estate is in Fisher Branch, Manitoba.

    The power of attorney said his house and land are assessed at under 5000.00, there are two vehicles, and what ever else he has there.
    My father and my Aunt have a joint bank account and I was told that all the money in the account about 24,000.00 goes to the survivor.
    My aunt has altimers and is in a nursing home in Selkirk, Manitoba.
    She has a will that her assets will go to my cousins family, so I am told.
    I do not know what to do at this point, I do not have a death certificate, and do not have a copy of the will.
    Please advise me on how I should handle this, I am the last survivor in my family and the executor and benifichery of the will.
    I don't have any money to fly over there, I would have like to recieve the money in the joint bank account to help pay off some bills, and I would like to donate the estate to the Syrian refugees.



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