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Wednesday, August 4, 2010

Can an incarcerated person be an executor?


In determining whether an incarcerated person is the right person to be your executor, there are two major factors to consider.


The first is the law. In this case I'm citing section 16(2)(a) of Alberta's Trustee Act, but similar legislation exists in other parts of Canada as well. The Act says that the court may substitute a new trustee (which in this case includes an executor) when the named trustee has been convicted of an indictable offence. An indictable offence, generally, is a more serious offence.


Note that the wording is "may" appoint a new trustee, not "must" appoint a new trustee, so it isn't automatic. Also, remember that not every incarcerated person has been convicted of an indictable offence so the rule doesn't apply to everyone behind bars. However, a person who named an incarcerated executor would be taking the chance that an application for probate would be rejected by the court, or that a beneficiary would ask the court to replace the executor.


The second thing to consider is the practicality of the arrangement. Being an executor is a heck of a lot of work and usually involves numerous meetings with lawyers, accountants, bankers, court registries, land titles clerks, realtors, appraisers and beneficiaries. Documents must be signed in person. Though not impossible, this is considerably harder to achieve for a person who is incarcerated. The estate will take longer to wrap up.


This is one of those areas where you have to make theory and reality work together.

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