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.
ReplyDeleteWhat 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