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Friday, October 17, 2014

If the executor doesn't want the job, can she hand it off to the sole beneficiary?

When a will names an executor who probably doesn't want the job and there is no alternate executor named, what happens? Can the executor hand off her duties to the sole beneficiary? A reader recently asked me this question, as well as a question of how that might be accomplished. His question and my answer are below:

"My wife is an only child. Her mother is alive, but father has passed away. Her mother has a 20-year-old will that names her sister-in-law as executor but my wife is now the sole remaining beneficiary. My wife and her mother get along just fine, but her mother is very uncomfortable discussing wills and estates. I have two questions:

1. If her mother passes away, her sister-in-law is named as executor. The two are not close and I'm fairly certain that if my wife offered to take on the responsibility of executor, the sister-in-law would have no problem with that. Is that something that could be arranged through a lawyer if both parties agreed?

2. What if the sister-in-law predeceases my wife's mother? There is no other backup executor named in the will. Would my wife be able to petition a court to be named executor or could this be done somehow through a lawyer?"

If your mother-in-law passes away leaving your sister-in-law as executor, it is not possible for the sister-in-law to give up executorship and pass it to someone else without the involvement of the court. Your wife and the sister-in-law cannot arrange it by mutual agreement.

Should your sister-in-law not wish to act as executor, she has the legal right to renounce the appointment, as she cannot be forced to take it on. However, she can't decide to whom the role of executor may be passed. Nor can she name anyone as a co-executor. It's just not her decision.

If she renounces, this would legally be the same as if she had predeceased your mother-in-law, in the sense that there is no back-up executor named to replace her. In either case, your wife could apply to the court to be the administrator of the estate. You mentioned that she is the only child, so she would be the person with the closest degree of kinship to her mother. Her position as sole beneficiary also provides her with legal standing when it comes to the question of who may apply. Nobody else would have a legal right greater than your wife to apply to the court.

A lawyer cannot make your wife the administrator. Only the court can do that for a person who passes away leaving no executor. However, not every will needs to be put through probate, and I would encourage your sister-in-law, when the time comes, to see a lawyer to ask whether she even needs to go through the process. This will depend on the type of assets owned by your  mother-in-law, their value, and the ownership arrangements (e.g. joint, solely owned, designated beneficiary). It may also depend on how good the will is, and whether a 20-year-old will is really recent enough to reflect changes and updates to wills and estates law.

It's too bad that your mother-in-law doesn't want to discuss these matters or make changes, but she certainly isn't the only person who is uncomfortable with the topic of her own mortality. I'm glad you and your wife are respecting your mother-in-law's right to decide for herself what is to be done, even if it really isn't the best decision she could make.


4 comments:

  1. Brilliant! Thanks for the reply. I've been following your blog for a couple of years now. Always great advice.

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  2. I have been in the Wills and Estates industry for many years in Alberta. In Alberta, if the appointed Personal Representative in a Will cannot or does not wish to act in that capacity, they can nominate someone else to do it, even if there is an alternate named in the Will. Once the named PR has nominated someone and "passes the torch", that is all that needs to be done. It is helpful to get the consents of the beneficiaries though, to show the Court that everyone is in agreement. Not sure how it works in other provinces, but for sure this is how Alberta works.

    ReplyDelete
    Replies
    1. You're correct. I didn't mention this in my post simply because I was trying to keep it general. The process you're referring to is renouncing and nominating someone else. And as you mentioned, the "someone" is not necessarily the beneficiary.

      Lynne

      Delete
  3. Actually, renouncing is not even necessary. In Alberta, the Personal Representative named in the Will can nominate whoever they want and they don't have to renounce.

    ReplyDelete

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