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Thursday, July 29, 2010

How do I change executors?

I'm often asked this question, but before answering I always ask whether the person's whose Will it is (the testator) is still alive. In other words, are you trying to change the appointment of an executor in a Will, or are you trying to change an executor who is already in charge of an estate?

A person can change his or her choice of executor in the Will as long as he or she has mental capacity to do so. Changing the executor doesn't necessarily mean making a whole new Will. If you are happy with your Will other than the executor named, you can have a Codicil made that only changes the executorship. A Codicil is simply a new, brief document that amends your Will. It is much like a Will, in that all of the rules for Will-making also apply to Codicils. The advantage to having a Codicil made is that the process and the document are shorter and less expensive.

The Will and the Codicil must be kept together so that they can be read as one document.

If you are interested in changing an executor who was named in the Will but who has not done anything on behalf of the estate, and who doesn't want to do anything for the estate, that executor can opt out. The legal term for it is renouncing the right to be an executor. An executor might renounce if he or she is too ill to be the executor, if he or she has moved very far away, if he or she has lost mental capacity, if he or she doesn't get along with the family members, or for other reasons.

The important thing to remember about renouncing is that it can only be done right at the beginning of an estate before an executor does any work. Once the executor takes any steps at all as executor, he or she can't quit being an executor until the court says so.

If an executor renounces and there is an alternate executor named, the alternate executor can then take over and be in charge of the estate.

If there is no alternate executor named, you are left with a Will that is completely valid except that there is no executor to carry out the work. At this point, someone will have to be appointed as an administrator of the estate. The Will is still used, but the court will appoint an administrator to do the work that the executor would have done.

If an executor is part way through the job of being an executor and wants to resign from it, he or she must ask the court for permission. At that time, the executor will be required to give a full accounting of all financial transactions that he or she has done on behalf of the estate. This includes an update on the current balances and values of all accounts, properties and other assets, and an explanation for each expenditure. This process is sometimes called passing of accounts. Until the court has approved the accounts and dismissed the executor, he or she remains the executor.

Sometimes the family members want to change or remove an executor who they believe is not doing a good job. They want to remove someone who doesn't want to be removed. This is not easy. The court will not want to remove an executor who was chosen personally by the executor without very good reason. It is pretty nasty litigation most of the time, and not something that should be attempted lightly.

20 comments:

  1. My brother passed away 2yrs ago. He left everything to two people, me and his common law. His money is split 50/50 between us both. I am received a letter that she is claiming dependant. She feels that because she has a disability that she should receive more. Can this happen and what is there for me to do?

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    1. Hi Grant. I answered your question in detail in a new blog post dated January 2, 2013.

      Lynne

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  2. Hi Lynne, after searching your site for awhile I still haven't been able to find the steps involved if the executor of the will cannot be found. What steps must I take to solve this problem? There is a co-executor...

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    1. Hi Mike,
      Most likely, the co-executor would apply to the probte court to be the executor alone. This is not a rubber-stamp type of application, as the law considers it to be a RIGHT to apply for probate if you are named as an executor. Therefore when you apply to go ahead without a named executor, you will be expected to explain the situation, and especially the attempts that were made to locate the missing executor. At some point it has to make sense to go ahead with the estate without the missing person, as otherwise assets will be at risk, taxes may be accumulating and beneficiaries can't inherit.

      Lynne

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  3. This comment has been removed by the author.

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  4. Hi, my wife passed away in February and she named her son as executor in a amendment to her will, but both her will and amendment have been declared null and void as they were made before we were married now I've been told I should be the executor. How can I change the executorship of her estate?

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    1. Hi Ken,
      I'm sorry to hear about your wife's passing. I have two points to raise about your question.

      First, is it necessary to have an executor in your wife's case? If all of her property was joint with you, and if her RRSP/RRIF named a beneficiary, there may be no need for an executor. There only needs to be an executor if she owned assets in her own name.

      Assuming that the estate does need someone put in charge, you have a couple of options. At this point, the step to take would be to apply to the court to be appointed as the administrator of the estate. The spouse is the person with the first priority to apply, which is why you've been told you should do this. However, you don't have to be the one. Her son could be appointed as administrator if you renounce in writing. There is a proper form to be used for this. When the son - or someone else - applies to the court, the renunciation document should be prepared, signed, and sent along with the rest of the papers to the court.

      Another choice is to go to a trust company and ask them to administer the estate. They charge no more than the son could charge, and bring quite a bit of expertise to the table. They could give you lots of guidance as to what steps you need to take.

      I hope these ideas help.

      Lynne

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  5. I want to make my children the executors of my will how should I word my codicil to make it legal

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  6. The important wording in a codicil is that you confirm your existing will in every respect except for the one change you wish to make. I'm not in a position to give you exact wording, since I've had no chance to talk with you or to see your existing will.

    Before you make your children your executors, I absolutely beg of you to think that through. How many of them are there, and why do you want all of them named as executors? Do you really think they can get along well enough to agree on every little thing, not to mention every big thing? If they can, they are super-human, because 99% of people can't seem to manage it. Generally speaking, the parent who names all of the children as beneficiaries is punishing them.

    Lynne

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    1. this is a will that is 30 years old and one executor has passed and the other is in their late 80,s and in poor health. My 2 children are very capable of handling my estate
      i wanted to do a codicil for a fix till I review my will in the fall with the lawyer

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  7. Hi, I just read Mike K's comment and the reply. My situation is slightly different in that the estate has already been signed off. But in Ontario I need the executors' consent to access my deceased Mother's health records. One of the executors sold the family farm and moved away without any forwarding/contact information and the other co-executor is not returning my calls. I live 500 miles away from him.

    Can I "assume responsibility for the administration of the deceased’s estate" based on PHIPA section 23 subsection 4? How is that done? Can I ask the court for permission? or appeal to the probate court?

    I don’t know what to do. I can’t litigate since I already signed release forms a year ago. I was forced to sign them because the few items (from my mother’s personal assets) that the executors allowed me to have, were going to be disposed of if I didn’t sign. The executors acted unfairly and illegally throughout the process. Is there anything I can do about that?

    Right now the health records are more important to me.

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  8. Hello: I was named executor in a will, I did not want to assume the role till I talked to a lawyer who also was the lawyer who wrote up the will. There were a couple weeks time from the death to when I could see the lawyer so I contacted all of the creditors to let them know of the death, the funeral was taken care of .. he put my name on the death certificate although I said I was not sure whether I would assume the role. I seen lawyer today and he says no problem renouncing, I signed a form and he gave me a copy and witnessed it, there is no mention he is a notary, nothing ... he said send it out to the creditors to update them and then my role is done. There is no one else to assume the role, he looked up the info on renouncing and said I did not have to contact the courts ... basically recommended I hand the keys to the bank holding the mortgage and get out of town. My husband and I are also the benefiiciaries but the debt exceeds assets so either way .. there will be nothing left in the end. Am I okay just sending this form off to the creditors?

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  9. hi, my dad was the exector of his dads will (my grandfather). he died several years ago. my dads step mom died recently and for some reason my dad is no longer the executor? can someone removed you as a executor withoutyou knowing? could his siblings just remove my dad totally out of the will and as executor?

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    1. Why do you assume that because your dad was his father's executor that he is also his step-mother's executor? They are two different people with two different estates. She probably made a new will after your dad died. Nobody removed your dad from his father's estate. It's the step-mother who died.

      Lynne

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    2. Thanks Lynne. that is a good point and to be honest i'm not sure what has happened. i guess my queston is does my dad have any right to know how the will was split up and why he didnt see anything from it?

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    3. First of all, thanks for reading through my typo where I said "your dad" instead of "his dad"!

      Your dad only has the right to see his step-mother's will if he is named as a beneficiary. Apparently, he isn't one. But I know this is a bit of a chicken-and-egg situation - you can only see the will if you're a beneficiary but if you don't see the will, how do you know if you're a beneficiary? If simply asking the question hasn't helped to your father's satisfaction, I suggest that he get a statement in writing from the executors of the step-mother's estate asking for written confirmation that he is not a beneficiary. He isn't entitled to know who got what, but he is entitled to know whether he was named. Few executors are willing to commit a lie to writing, particularly if your father makes his request through a lawyer.

      Lynne

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    4. thanks for your help in this. I dont think my dad was mentioned as a beneficiary, his brother and sister stopped talking to him right after their dad passed away for the sole reason of eliminating him off the will. thanks again for your time.

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  10. Hi Lynn,

    Both of the executors named on a relative's will died before he did.

    Do we need to get the court to appoint someone - presumably next of kin? Or would the responsibility fall to the executor of the first executor?

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    1. No, it doesn't fall on the executor's executor, but it might have if that first executor had started work on the estate before dying.

      The court will need to appoint someone to deal with assets, pay debts, file tax returns, etc. If your relative died leaving a spouse, that would be the most likely person to apply. As a general rule, the person with the closest kinship may apply, and nobody with a further kinship may apply until all of those with a closer kinship have agreed in writing to that person being appointed. If it isn't clear to you who has priority, you should be able to find out pretty quickly by consulting someone local to you with estate experience.

      Lynne

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    2. That's very helpful. Thanks!

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