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.
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?
ReplyDeleteThanks for your question. This is certainly an unusual situation, and in fact some of this doesn't really hang together for me.
ReplyDeleteHow 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
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.
ReplyDeleteWould appreciate all help! Thank you.
WHAT HAPPENS TO WILLS THAT ARE HELD AT A LAWYERS OFFICE WHEN THAT LAWYER RETIRES.
ReplyDeleteIf 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.
DeleteLynne
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?
ReplyDeleteIt'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.
DeleteLynne
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.
ReplyDeleteYou need both of those. Each executor needs to make the affidavit under oath, so it has to be done that way.
DeleteLynne
Hello Lynne,
ReplyDeleteI 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
Hi Johnny,
DeleteI 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
Hi Lynne,
ReplyDeleteI 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,
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!
DeleteLynne