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I Want to Cancel my Appointment as Executor

 

Someone wrote us recently and asked how to cancel their appointment as an Executor for a will.

To say that there is an easy fix to this situation would be oversimplifying the matter.

There are several issues that need be addressed when one decides that they want to “cancel” their appointment as Executor.

The first important question is to look at the will instrument itself.  Is there an alternate Executor named.  If so, the alternate will “take over” if something happens, or if you decide not to act.  The same holds true if someone names “co-executors” or “several executors” to manage the affairs of the Estate. 

The second important question is to determine the state of the Testator (the person who created the will instrument).  If they are still alive, you advise them of your wishes to be removed as the Executor.  If they are already deceased and there is no provision for anyone else to assume the role of Executor in the Will, you will be best advised to contact a lawyer to determine whether or not the court will accept a renunciation made under section 34 of the Estates Act.
If a person is named as Executor and has already begun acting in that capacity, it becomes even more difficult to remove oneself from being the Executor, Estate Trustee or Administrator of the Estate.  If you begin acting as the Executor you are usually obligated to bring the matter to its completion.

The Executor acts as an alter ego of the deceased; his or her fundamental role is to wind up the affairs of the deceased and distribute the estate to those entitled.

Most often, the immediate matters needing to be taken care of include:
- Making appropriate funeral arrangements.
- Locating the original will of the deceased.
- Consulting with a solicitor when necessary.
- Determining the names and addresses of the beneficiaries/next of kin and notify them.
- Searching for cash, securities, jewellery, etc. and arrange for safekeeping.
- Reviewing the will to ensure that it is clear.
- Disposing of all perishable assets.
- Opening an estate bank account.
- Reviewing insurance coverage.
- Making provision for the immediate needs of dependants.
- Collecting income generated by the estate assets to the deceased.
- Paying bills, mortgage/rent, insurance premiums, credit cards.
- Re-directing mail and cancel health insurance coverage, driver’s license, cable, telephone, club memberships, subscriptions, and apply for death benefits under the Canada Pension Plan Act.

No one can be compelled to act a personal representative/Executor of the deceased, and given the duties listed above, a person may well decline to do so.

If a person wishes to serve as the personal representative, but is concerned that he or she may not be able to dedicate the time and energy required, certain duties can be delegated to a lawyer or an accountant.

The Executor must exhibit the common law standard of care and diligence which would be expected of a reasonable and prudent person in conducting his or her own affairs.  The Supreme Court of Canada has described this obligation as the duty to exhibit “vigilance, prudence and sagacity” in carrying out the Executor’s functions.

The Executor must generally act personally in carrying out his or her functions and cannot generally delegate his or her power.  The Executor can employ professional advisers and agents to assist in his or her decision-making, to the extent that it is normal business practice to do so in such circumstances.  However, an Executor should be aware that 1) that the ultimate decision-making responsibility will rest with him or her and 2) he or she has the duty to supervise any agent employed to perform administrative services.

An Executor is not liable to make up shortfalls that may exist in the Estate when one reviews the outstanding debts.  An Executor however, is obligated to ensure that all debts are paid prior to any distribution of the residue to beneficiaries.  If the Estate is deficient of necessary assets, then the Executor must pay those necessary to satisfy immediate costs, ie. Funeral costs.  An Executor is not personally responsible for making up the shortfall unless it is determined that the Executor was negligent in the manner of distribution.

In all matters the even hand rule applies.  Unless the will provides otherwise, the Executor must not favour one beneficiary over another.

For more information and assistance please call 461-3935 or access our interactive web a www.northshorelegal.ca or send your questions or comments to bondyk@lao.on.ca

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