Becoming an Estate ExecutorShow Table of Contents
Ideally, the decedent discussed the role with you beforehand and you knowingly agreed to serve (see Choosing an Executor), but in any case you can usually decline when the time comes if for some reason you choose not to serve (perhaps you don't have enough time, perhaps you are unable to handle the duties, perhaps you simply don't want the headache ... it doesn't matter). However, someone will have to serve in the role, and the court will appoint someone if necessary.
The following material applies to provinces other than Quebec (see also Quebec).
If you know you are going to serve as executor, there are a number of things you can do before the decedent passes away that will make your task significantly easier, in particular gathering information ahead of time with the estate owner's help rather than playing a detective game later (see In Advance for more information).
Taking the Reins
Once the estate owner passes away, you are entitled to act as executor of the estate/succession if:
- The will names you as executor
- Or there is no will and you are first in line to serve according to provincial law (e.g., surviving spouse, child, other relative)
- Or the local probate court has named you executor
Actually, if the estate is required to go through probate, you will need to be officially appointed executor by the probate court even if you meet one of the other criteria as well. That being said, there are some things you can do even before being officially appointed, and if the estate is not required to go through probate, you never need an "official" appointment.
- Petition for Probate: Start by filing a document normally called a Petition for Probate with the decedent's local probate court (see Probate Forms). If there is no will, the document will usually instead be called a Petition for Administration. If there is no will, or the will does not address the requirement for a probate bond, you may wish to attach Bond Waivers from each heir (see Probate Bonds).
- Notice of Probate: Before the first probate hearing, many provinces require you to notify all heirs named in the will, and any heirs who would inherit by provincial law if there were no will (even if there is a will).
- Probate Hearing: The court will hold a hearing to officially consider and approve your appointment as executor. Often this hearing is just a formality, and you may not need to attend at all.
- Objections to Appointment: Note that interested parties have the right to legally challenge your appointment as executor (before your official appointment, or even afterwards), regardless of the reason for your executorship.
- Probate Bond: If required by the court, you must obtain a probate bond before officially becoming executor. Such a bond protects the estate from any losses you cause (up to a certain dollar amount), and requirements for the bond can depend on jurisdiction, size of estate, whether or not you reside in the same province, and other factors
- Letters: The final step in the appointment process, immediately following the probate hearing, is to receive your official documents from the court stating that you are the executor of the estate. These documents, sometimes known as Letters of Authority, Letters of Administration, or Letters Testamentary, are commonly referred to as your "Letters".
If you do not live in the same state as the decedent, you may need to take a couple of extra steps in order to be officially appointed as executor (such as appointing a local agent). If you are using EstateExec, it will automatically add the appropriate task to your Task list, including detailed instructions.
Other Paths to Becoming Executor/Liquidator
If no one exists who meets the default criteria to serve as executor (i.e., named in the will or in the default line of succession), or the applicable people refuse the responsibility, the court will appoint someone else (perhaps the Public Trustee, or perhaps someone who desires the responsibility but has no legal standing to demand it). In fact, the court is not always obligated to follow the desires of the will or the default succession in any case.
If you wish to serve as the executor but there are other people with higher priority than you, you can normally achieve your goal by submitting signed waivers of those other people, stating that they do not wish to serve (and even better, also stating that they'd like you to serve).
You can even serve as the executor without an official probate appointment if the estate is not required to go through probate: see Alternative to Probate.