When an Executor Refuses or is Unable to Act
When an executor refuses to act, beneficiaries of the will may become upset because the executor is the only person who can ensure the estate gets distributed. Fortunately, there is a process for the reluctant appointed personal representative—the term used for executor, administrator, or trustee in Alberta—to renounce the appointment.
(Note: the term “personal representative” is the current legal term used to refer to an executor/executrix, administrator/administratix, and judicial trustee.)
The first step is to determine whether the executor is really refusing to act. Perhaps the person is just moving at a slower pace than others would like or is getting everything in order behind the scenes before taking action.
People work in different ways, so don’t assume the worst of the person before you have all the information. Additionally, remember that it is not easy to be a personal representative. It can take a lot of time and effort, all while the person appointed as executor is grieving the loss of a loved one.
Residual beneficiaries of a will have the right to be informed as to what the executor is doing. Not all executors realize this. If you are a residual beneficiary, you can contact the executor or the executor’s lawyer and ask for an update.
If, after communicating or trying to communicate with the executor, you still believe he or she refuses to act, it is time to encourage the executor to renounce. There are many reasons why people refuse to take on the job of executor. They may be unable to act for health or emotional reasons, or simply because they don’t have the time. If a person appointed in a will does not want to take on the job of being a personal representative, he or she cannot be compelled to do so.
Note that renunciation can only be done if the person has not intermeddled. Intermeddling means that the person has already begun carrying out the executor duties, thereby taking on the role of executor. Therefore, the executor should renounce very soon after the testator—the person who made the will—dies.
If intermeddling has not taken place, a person appointed as a personal representative in a will can renounce by submitting Form NC 12 to the court. The renunciation form must be signed by the person before a witness and included with the application for a Grant of Probate.
Another form can be used to allow the person renouncing to reserve a trusteeship. If the person renouncing still qualifies to apply for a Grant of Administration with Will Annexed but doesn’t want to apply, he or she will have to waive the right to a Grant of Administration.
Sometimes an executor decides he or she does not want the appointment after carrying out a portion of the executor’s duties. Only the court can give permission for resignation. The executor will have to provide an accounting of expenses and include the balance of all accounts and the value of all assets.
The executor remains in his or her role until the court approves the account and dismisses the executor. Note that the court may not allow the executor to resign.
If an Executor Refuses to Act or Renounce
If it is clear that the executor is deliberately delaying applying for probate, perhaps because he or she is benefiting in some way, you will have to take the matter before the court and make an application for directions. This means that both parties tell their stories to the court and ask for direction on how to move forward.
Going in front of the court may not result in the removal of the executor, but it could very well move things along. An estate lawyer can help you determine whether or not to make this move.