Real Time Web Analytics

Pages

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.

54 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?

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

      Lynne

      Delete
  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...

    ReplyDelete
    Replies
    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

      Delete
  3. This comment has been removed by the author.

    ReplyDelete
  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?

    ReplyDelete
    Replies
    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

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

    ReplyDelete
  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

    ReplyDelete
    Replies
    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

      Delete
  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.

    ReplyDelete
  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?

    ReplyDelete
    Replies
    1. the creditors will go after the estate which will be owned by mortgage company.

      Delete
  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?

    ReplyDelete
    Replies
    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

      Delete
    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?

      Delete
    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

      Delete
    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.

      Delete
  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?

    ReplyDelete
    Replies
    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

      Delete
    2. That's very helpful. Thanks!

      Delete
  11. Hi Lynn
    My mother passed away 4 years ago. She had asked me previously to be her executor. so I assumed I was. A few days before she passed in front of family members I asked her if I was her executor and to tell me where I could find a copy of the will and she said I was and that when she got home she would get me the copy. Sadly she never returned home. At the funeral home I found out my step father was the executor and that I apparently am co-executor of his will. I have never received a copy of the will. Can he change this without my knowledge?

    ReplyDelete
    Replies
    1. Your step-father can't change your mother's will. He can name whoever he wants on his own, but that doesn't change hers.

      There are a couple of possibilities here. Perhaps she meant to make a new will naming you as executor, but never did. Perhaps she did make one that revokes the one naming her husband as executor (how old is it?) but nobody has found that will yet.

      Lynne

      Delete
  12. Hello Lynne. A very close family friend passed away very recently and we can't find a signed will. We did find an unsigned will on her computer dated in 2009 naming our daughter as Executrix and also as partial Beneficiary. Our friend did have a long loss brother that she wanted nothing to go to and has not been in touch or talked to him in over 22-yrs. She also has a cousin that she had minimal email contact with thru the years and a divorced husband from over 22-years ago.
    Does the unsigned will in her computer dated 2009 serve any purpose or is it just too bad so sad and brother gets it all ??

    ReplyDelete
  13. Dear Lynne: My wife and I have my 50 yr. old daughter (from a previous marriage, lets's call her C.) as executrix of our will. We have a 21 year old son (half brother to his sister C. and he is old enough and smart enough to be executor now. His is the only one named in the will as survivor to all our worldly goods.
    C. has two sisters, K. and D., and all three have had large amounts from my previous marriage when the property was sold when my ex and I split up, and all three are satisfied that they want no part of my existing estate with their half-brother D. (There is a 24 year difference between our son and his closest half-sister.)
    Is a codicil the only document we need to change executors, with signatures, to our will. As we are all still alive I trust this will be as seamless a transaction as needed. Many thanks. Ron.

    ReplyDelete
  14. My mom passed away 6 months ago. My brother is the executer. He recently signed over power of attorney to his wife. Does that make her executer?

    ReplyDelete
  15. My Father has appointed an executor to his will, that person is no longer interested in holding that position, who is responsible for making the change to the will.
    Thanks

    ReplyDelete
  16. This comment has been removed by the author.

    ReplyDelete
  17. Hello Lynne,
    My father passed away 9 years ago and made his girlfriend the excutor of his estate. He was still married to my mother at the time. The girlfriend has moved recently and we do not have contact information for her. Everything has been dealt with to our knowledge (but having never seen the full will we can't be 100% sure). The issue is that a plaque that has been stolen from a tree that was dedicated to him in the cemetery and they won't discuss it with us because we're not the executors. Can we change the executor now without a court order?

    ReplyDelete
    Replies
    1. No, not without a court order. I doubt you would be able to remove an executor because of the plaque issue, particularly because you wouldn't be able to serve the girlfriend with notice of your motion.

      Have you done a search at the probate court for any records there? If the girlfriend filed for probate, there would be a copy of the will on file.

      I know that won't help with the plaque (unless her new address was for some reason given to the court) but it might answer your other questions about the estate.

      Lynne

      Delete
    2. Thank you! I was hoping that was not the case. I guess I'm going to court.

      Delete
  18. I am the executrix of my sister's will. Still awaiting probate decision from bank. This family is very controlling, manipulating and contentious. I am receiving very caustic e-mails and my health is declining and angst increasing. Is there any way to get out of it all now?

    ReplyDelete
    Replies
    1. I wish I could say that your situation is rare, but it's not. I honestly feel terrible for executors who are doing their best but receive nothing but hostility for their efforts.

      As I said in the original post, once you begin work as the executor, you cannot renounce the job without court permission. Obviously I don't know everything you've done as executor, but the fact that you've gone to the bank and told them you're the executor indicates that you have actually begun the work.

      You can apply to the court for two things at the same time. One is to be released from the job of executor and the other, which is part and parcel of the first bit, is to pass your accounts.

      Passing your accounts basically means showing the court paperwork of everything you've done. All decisions you've made. Every dime you've received or paid out on behalf of the estate.

      Making this application does not mean that you have to tell the court every incident and insult. It is enough that you describe the situation and its effect on your health, and the fact that it's not going to improve.

      Your application is much more likely to succeed if there is someone else lined up to take over for you as executor. If there is nobody named as alternate and nobody in the family will do it, I suggest that you approach the office of the Public Trustee to see if they will do it.

      Best of luck.
      Lynne

      Delete
  19. I want to remove my name as co-executor to my parents will. My Father passed but my Mom has not. How do I make this happen so it's clear and legal?

    ReplyDelete
    Replies
    1. On your mom's will, you don't have to do anything yet. In fact, you really can't do anything yet, other than tel her you don't want to do it.

      If she passes away and you're still named as an executor, you can renounce the job (I've posted on that a couple of times so search for that and you'll find tons of info on how and when to renounce).

      Your father's estate is another matter. If you have started working on the estate as a co-executor then you cannot quit until a judge releases you.

      If you haven't yet done anything on the estate, you can renounce the job as I mentioned above.

      Lynne

      Delete
  20. Our Father passed away, leaving our step-sister as executor to his will. All his possessions were divided up amongst those named in the will and property sold. The lawyer is attempting to contact her as she just needs to fulfill the CRA tax on property and the remaining moneys divied up. Neither the lawyer or our siblings can get an answer from her. We suspect she has spent all of the money and is afraid to have this come out (or is waiting til she can replace the money)but we the natural siblings, wish to have our closure and put this to rest. What are our options (the estate lawyer has not yet replied to this)
    Thanks

    ReplyDelete
    Replies
    1. You don't have a lot of options. If the executor will not willingly participate in the estate, you have to force the issue. The only hammer you have is the court system.

      You will need to ask the executor for a full accounting, of course. Other possibilities will depend on what you find out. If she has in fact spent the money there may be an order removing her as executor and one requiring her to repay the money, etc.

      Lynne

      Delete
  21. My uncle (by marriage) is very ill with a brain tumour. His speech is getting worse daily. His lawyer....is his friend, silent business partner and now executor of my uncles will. This lawyer is now stealing money from my uncle, and having my uncle sign all different types of paperwork. My aunt (blood aunt, his wife) has recently passed away, who WAS the executor etc....How do I fix this? Would this lawyer not be a conflict of interest, as he could change my uncles will? Please any advice would be appreciated!!!

    ReplyDelete
  22. I am currently listed in a will as a co-executor but I know that I cannot act as an executor so I wish to renounce. Upon the death of the person whose will it is, do I just file a 'Renunciation of right to a certificate of appointment of an estate trustee' with the Superior Court in Toronto (ON)? And then the remaining executor applies for status as the executor?

    ReplyDelete
    Replies
    1. That is the right form, but you should provide it to the other executor. Then he or she will include it in the package of documents that goes to the court when he/she applies for probate. Your renunciation form explains why there are two executors named in the will but only one is applying, so it makes sense that it's packaged with the others.

      Lynne

      Delete
  23. Hi Lynn,
    My wife was identified as a co executor of her step mothers will, this after her father passed away June 2017. Step mom created a new will with her bio daughter and her step daughter ( my wife). We have the original of that will.
    Over the past year the two executors have had issues. Now mom passed away this week.
    The daughter tells us a new will was created during this past year that removed my wife as executor.
    Can this be the case as my wife was never informed that she was removed? Could her step mom wrote a new will , perhaps with a new lawyer and never told her?? Is that legal?? Advice please and thank you!
    !!!

    ReplyDelete
    Replies
    1. There is no legal requirement to tell someone they've been removed as executor. Her mom was entitled to appoint whoever she wanted without saying anything to anyone.

      Lynne

      Delete
  24. My brother and I were named co executors on my mothers will. She has since passed and my brother has taken care of everything as he still lived in the same city. Now we are being told we need to set up an Estate account to deposit her CPP cheque. As I live out of town and have not done anything for the estate can I renounce being executor or is it too late? I just want to make everything easier, and to finalize the estate.

    ReplyDelete
    Replies
    1. How is he managing to do everything on his own if there are two executors named? Did you sign the application for probate? If the will has gone to the probate court with you named as executor, it's too late to renounce.

      Lynne

      Delete
  25. Does it cost a lot to change executor of will?

    ReplyDelete
    Replies
    1. I assume that you're talking about a person getting his or her own will changed. It's not expensive, particularly if you go back to the lawyer who did the original will. This is because the lawyer should have your will stored on his/her computer and won't have to start from scratch. Then again, if your will is totally ancient, the lawyer likely will start over. When people who are already clients of ours (i.e. we've done their wills for them in the past) we charge a nominal amount for an amendment of the document such as the change of the executor.

      Lynne

      Delete
  26. My wife's mother passed way a week ago. She discovered she was named the sole executor of the will. The problem is her mother's estate is in New Brunswick and she resides in Ontario. We know makes things more complicated and expensive. Is it possible to transfer to the role of executor or give signing authority to her brother who lives in New Brunswick? The estate is small and is going to only one recipient. Thanks.

    ReplyDelete
  27. If your wife renounces as executor, a person named as the alternate executor in the will has the right to take over. You haven't mentioned an alternate, so I'll assume there isn't one.

    An executor cannot assign or delegate the role of executor. Only your wife's mother (or a court) can decide who is in charge of the estate.

    Does the will have to go through probate? If so, someone will have to apply to the court to become administrator of the estate (with will annexed). That's the point at which the court gives someone the permission to act for the estate. However, I believe from the way your question is framed and the fact that the estate is small that perhaps the will is NOT going to probate.

    It's possible that the brother can do a lot of the legwork for your wife if she stays on as executor. It depends on what needs to be done. Your wife can direct her brother to do things such as clear out the mother's apartment. The only thing she really can't delegate is her decision-making ability. So, she can enlist his help as long as she is still calling the shots.

    Lynne

    ReplyDelete
  28. Hello, my wife and my individual wills state my brother as executor, and we are now (15 years later) thinking of changing out my brother for our two children (31 and 34) as co-executors.....long process? or expensive? You mentioned not a good idea to have siblings as co-executors (they are equal beneficiaries)? Can the change be done within a few weeks? Thankyou. R.M.

    ReplyDelete
    Replies
    1. It's possible to keep your wills as they are and simply do a codicil to amend your executorship clause. But this is one of those times where what you CAN do is not necessarily what you SHOULD do. In 15 years, no doubt a few things have changed in terms of your finances and your family. It's worth it to review it all, and by that I mean life insurance, RRSPs, banking, etc, in the context of having a new will done.

      I can't speak for other lawyers in terms of how long they take to do things. Most of the time we get draft wills out to clients within a week, but even we get bogged down when we have a trial or other large matter taking up a lot of manpower.

      You're correct that I'm not a fan of siblings acting as co-executors. I see an awful lot of litigation where estates are completely derailed by the two siblings jostling for position. It should work well, but it doesn't in many cases.

      Lynne

      Delete
  29. Hello
    My mom recently passed and had a very dated will that had my aunt as her executor whom is now unfit/unwill.
    How do they sign over excutor rights? They are willing but not sure where to start?
    We are in canada and they are in the US not sure if that complicates

    ReplyDelete
    Replies
    1. If your aunt is unable or unwilling to be the executor, she can renounce. This is as simple as her signing a one-page document called a Renunciation.

      Your mom's estate should be processed in the jurisdiction where she normally lived. When you say "we" are in Canada, I'm not sure if that includes your mom or not. Assuming your mom lived in Canada, her estate should be administered in her province of residence and the Renunciation should be done in the form used in that jurisdiction.

      I would suggest that since your aunt lives in the USA, she should have a witness to the renunciation who will sign an affidavit of witness in front of a notary public.

      Lynne

      Delete
  30. My dear father passed away on March 16th, 2019 leaving a will (I, along with my four siblings are the beneficiaries) and he named my Aunt and Uncle as co executors. To date, they have not probated the will.
    They hadn't had Dad's financial accounts frozen and placed in an Estate Trusted Account at the time of his passing, they have not provided us with any reports of any kind relating to Dad's; Bank and investment accounts nor the value of his estate at the time of his passing nor provided monthly details of expenditures and reports of ongoing processes,etc. They have failed to do anything at all with respect to the administration of Dad"s Estate for months at a time.
    They have even failed to pay the expense of the luncheon following Dad's funeral. My sister paid for it and was never reimbursed. In short, I suspect they are incapable of Executorship, wilfully or negligently. The excuses for not doing what is fundamental under Ontario Probate rules is a never ending story. Please tell me how I can go about having them removed and replaced by myself and one of my siblings under these circumstances. I strongly suspect monies have been stolen from my Father's estate as s well. I am unfortunately a person of low income and it appears that Ontario Legal Aid clinics in the GTA do not provide assistance.
    Any guidance you could provide would be greatly appreciated.

    Sincerely,

    Michael M. Verzuu

    ReplyDelete

You might also like

Related Posts with Thumbnails