Real Time Web Analytics

Pages

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.

53 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?

    ReplyDelete
  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

    ReplyDelete
  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.

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

    ReplyDelete
    Replies
    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

      Delete
  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?

    ReplyDelete
    Replies
    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

      Delete
  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.

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

      Lynne

      Delete
  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

    ReplyDelete
    Replies
    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

      Delete
  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,

    ReplyDelete
    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

      Delete
  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.

    ReplyDelete
    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

      Delete
    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

      Delete
  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.

    ReplyDelete
    Replies
    1. This comment has been removed by the author.

      Delete
    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

      Delete
  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?

    ReplyDelete
  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.

    ReplyDelete
  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.

    ReplyDelete
    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

      Delete
  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

    ReplyDelete
  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

    ReplyDelete
    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

      Delete
  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?

    ReplyDelete
    Replies
    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

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

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

      Lynne

      Delete
    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.

      Delete
  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?

    ReplyDelete
  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.



    ReplyDelete
  20. My father passed in recently and his will named me as executor and sole beneficiary.
    He lived in Alberta, but I reside in BC. If I open an estate account here in BC, will the Alberta Treasury Branch be required to release the funds over to the new account?

    ReplyDelete
    Replies
    1. Just to clarify, I would like to open an estate account with BMO, but my fathers account is held by Alberta Treasury. There should be no issue with having the funds transferred??

      Delete
    2. Intrepidbiped,
      As I've already stated, I know of no legal impediment to the steps you want to take. I cannot, however, speak to bank policies or procedures.

      Lynne

      Delete
    3. Thank you, Lynne! Greatly appreciated.

      Delete
  21. My daughter is my executor of my will but lives n US (green card) and is Canadian citizen. We cannot afford a bond. Can his be avoided? Desperite for advice.

    ReplyDelete
    Replies
    1. The bond is only required after you pass away and your daughter sends the will to the probate court.

      Not every will needs to go to probate (see my posts about that on this blog). If you do not have assets that require probate, your daughter will not have to apply to the court and will not have to post a bond.

      Another idea is to have a co-executor to work alongside your daughter after you pass away. If one of your two executors lives in your province, you will not need a bond.

      It may also be possible to ask the court to dispense with a bond. It's not something you can count on because the court has the choice to require a bond or not, on a case by case basis. In my province, for example, they NEVER dispense with it. But when I practiced in Alberta, I often was able to provide the court with facts that gave them the reassurance that a bond wasn't needed.

      I don't know anything about your circumstances so I don't know whether one or more of these ideas would work for you, but hopefully they will give you some food for thought.

      Lynne

      Delete
  22. my son passed in Ontario and I am his executor and live in BC. His only assets were 1: his truck which was in Ontario, but was shipped to bc, and 2: a snowmobile(in BC) Now inorder to register the truck in BC i need a letter of probate or equivalant documentation from the previouis jurisdiction accordingly to ICBC. How do I go about that, I am not traveling to Ontario. Of all issues arising - this is the only time a letter of probate has been required.

    ReplyDelete
  23. Hi, if my Son lives in Alberta and he is my Executor of our estate and we live in Ontario.
    Will my son have to pay bond to take care of my affairs in Ontario?
    If yes,if I have a co executor as well that lives in Ontario, then no Bond Needs to be paid?
    Thanks in advance

    ReplyDelete
    Replies
    1. Hi PMB,
      Ontario is one of the provinces that requires executors to live out of province to obtain a bond at the time of submitting a will to probate. Depending on the circumstances, the lawyer who submits the application for probate may be able to persuade the judge do dispense with the bond. Unfortunately, "may be able to" is not certain enough to use as a planning tool.

      You are correct that if there are two executors and one lives in Ontario, a bond should not be required.

      Lynne

      Delete
  24. Thanks Lynne, I really appreciate your comments!!

    ReplyDelete
  25. My father passed just under 2 weeks ago, we are Albertans. His sister is the executor but she lives is BC. I'm a beneficiary of one of my father's pensions. what kind of fees are we looking at for probate if she is from a different province? Anything else I should know?

    ReplyDelete
    Replies
    1. Hi Trufflesauce,
      There are probably dozens of things you should know, depending on the facts.

      The probate fee is the same no matter where the executor lives. I believe the maximum fee is $525. There could be additional expense if the court requires your aunt to post a bond as executor.

      Lynne

      Delete
  26. Hello Lynne,
    My mother passed (Ontario). Divorced from my father. Divorced father’s brother is named executor from a 1994 will. Father’s brother resides in Alberta, said he would resign, changed his mind a month later and refuses to back down. Beneficiaries are my sister (Ontario) and myself (Alberta) only.

    Can we have him removed due to a conflict of interest, as well as out of province issue? (Name my sister in Ontario as the trustee instead?) We have already filed a notice of objection.

    If you could give any advice we would be so grateful!!!

    ReplyDelete
    Replies
    1. Removing an executor is a tough job. Judges do not like to overturn the clearly stated wishes of a deceased person in a will. You will not get someone removed because they live out of province, for sure. I don't see anything in your note that indicates a conflict of interest.

      It looks to me as though you and your sister don't like your mother's choice of executor and you'd like to have a different executor. Unfortunately, that is not your choice. It was your mom's choice and she had 15 years to change her mind. This probably is not what you want to hear, but I don't see how you have a case at all.

      Lynne

      Delete
  27. My friend's grandmother died in Alberta but her original Will was executed in British Columbia in 2016. The executor her son is in Alberta. It seems that no lawyer in Alberta is able to help them in their Will. Please advise.

    ReplyDelete
    Replies
    1. I take it that the issue is how to probate the BC will. Normally a will is probated in the jurisdiction where a person lived, which can be different from where he or she died. In this case it sounds as though the grandmother lived in BC for at least some period of time. If she was only in Alberta temporarily, such as for a visit, then her residence would still be BC and her will should be probated there.

      If, however, she had moved to Alberta and considered it her home, then it is possible to probate a will from BC (assuming the will was properly executed and was valid in BC). Perhaps you need to consult someone with more wills experience. Try to find someone whose practice is completely or substantially in the wills and estates area. If your friend is in Edmonton or Calgary (or close by) I can provide some suggestions for lawyers to see.

      Lynne

      Delete
  28. As a sole heir living in usa,and also a sole executor what do I need to do to liquidate my father's bank accounts in Quebec?

    ReplyDelete
  29. Hi Ike,
    Since you are a sole executor, I know there is a will. What I don't know is whether it is a notarial will made by a notary in Quebec. Their system in Quebec is quite different from the rest of Canada. If the will was made by a notary in Quebec, you most likely will not have to go through the probate process. Probably the easiest thing for you to do is to try to get in touch with the notary who drew the will. He or she will be able to either help you contact the banks on your own, or do that for you.

    Lynne

    ReplyDelete
  30. Hello Lynn,thanks so much for your expertise reply to my question.My dad's will is done by a notary in Quebec.You are really the best.God bless you abundantly.

    ReplyDelete
  31. Thanks again Ms Lynne,you are awesome.can I transfer the funds to my account in the USA,since iam the sole heir or I need to open an estate account first?

    ReplyDelete

You might also like

Related Posts with Thumbnails