What happens if the named executor decides that they aren’t in a position to carry out the duties as an executor — or maybe they no longer want to act as an executor?
It can be an honour to be named as someone’s estate executor (liquidator*); after all, it signifies that person’s trust that you will carry out their wishes as intended. However, sometimes individuals accept the role without fully understanding its associated responsibilities and duties. Or, due to a change in circumstances, such as health issues or moving to another province/country, the individual may no longer be able to assume the role.
What happens if the named executor decides that they aren’t in a position to carry out the duties of the role — or maybe they no longer want to act as executor?
It is possible to step down from the role of an executor. If the executor hasn’t yet applied for probate. they can generally renounce the role by providing formal documentation to the courts.
However, if the executor has already applied for probate and started administering the estate (called “intermeddling”), renouncing the role may be more difficult. They must apply to the court to get a removal order. Since the estate administration has begun, they may be held liable by the beneficiaries for any loss in value to the estate. It is also possible that the courts could refuse this request, especially if the executor is well into administering the estate.
This is why it’s important to think carefully from the outset about the role.
If you are considering your own estate and appointing an executor…
Make sure that the person you ask is comfortable in this role;
Consider having an alternate executor named within the will —make sure that you ask them:
Periodically review your named executor’s circumstances to account for any changes, such as health issues or moving to another province/country, as these can complicate the estate settlement process;
Consider family dynamics;
Don’t be afraid to consider the support of a corporate executor.
If you are asked to be someone’s executor…
Recognize that the role can be difficult and may involve many hours of work, emotions, and potentially complex family dynamics;
Don’t be afraid to ask questions. Is it a complex estate? Are there any potential surprises that may emerge?
Remember that in this fiduciary role you have legal obligations and liabilities;
If your circumstances change and you’re not in a position to take on this role, make sure to let the person know;
Don’t be afraid to say no if you don’t think you can handle the associated responsibilities.
As an alternative, most banks and trust companies offer executor services. An executor could also hire a trust company to act on their behalf, to support the process, or to outsource some of the duties and responsibilities. Instead of naming an individual as an executor, there are also corporate executor services, where a professional or trust company can be named in the will. This may be especially valuable in a situation in which there isn’t a suitable friend/family member to act, or in other scenarios in which family dynamics may cause disharmony based on who has been named as executor.
Consulting with an estate planning professional may be a worthwhile consideration in this situation.
[For the purposes of this article, the person who has been appointed to settle the estate as the executor, also called the liquidator in Quebec or referred to by other terms based on the province of residence.]
