Being named as the executor of someone’s Will does not mean you are required to take on the role.
Acting as an executor can involve a significant amount of time and responsibility, and it is important to understand the responsibilities of an executor before deciding whether to take on the role. An executor may need to locate and value assets, deal with debts and taxes, apply for probate, communicate with beneficiaries and ultimately distribute the estate.
For some people, taking on these responsibilities simply isn’t practical.
If you have been named as an executor in British Columbia but do not want to act, you may be able to renounce your appointment. However, what you should do next can depend on whether you have already started dealing with the estate.
Do You Have to Act as an Executor If You Are Named in a Will?
No. Being named as an executor does not force you to accept the role.
Under British Columbia’s Wills, Estates and Succession Act (“WESA”), a person named as an executor in a Will may renounce their appointment. In general, this allows the administration of the estate to proceed as though that person had not been appointed as executor.
There are many reasons someone may decide not to act. The executor may live far away, have work, health or family commitments, feel uncomfortable managing the estate, or simply not have the time to take on the responsibilities involved. If you have been asked to be an executor, it can be helpful to understand what the role involves before deciding whether to act.
The important thing is to consider this decision early, before taking steps to administer or deal with the estate. Meeting with a probate lawyer before you start to act as executor is key to understanding what is involved before it’s too late to renounce.
How Does an Executor Renounce Their Appointment in BC?
An executor who does not want to act can formally renounce their executorship.
In BC, a Notice of Renunciation (Form P17) can be filed as part of the probate process. By formally renouncing, the person gives up their appointment as executor and the administration of the estate proceeds as though they had not been appointed.
The Notice of Renunciation requires the executor to declare that they have not “intermeddled” in the estate. For this reason, someone who is considering renouncing should be careful about taking steps to administer or deal with estate property before getting advice about their options.
Renunciation is intended to be a clear decision to step away from the role rather than simply leaving the estate unattended.
What If There Is Another Executor Named in the Will?
Some Wills name more than one executor or appoint an alternate executor in case the first person named cannot or does not want to act.
If one executor renounces, another executor named in the Will may be able to proceed with the administration of the estate and apply for probate.
For example, a Will might appoint a spouse as the primary executor and an adult child as an alternate. If the spouse does not want to take on the role and properly renounces, the alternate executor may then be able to act.
The wording of the Will should always be reviewed carefully to determine who has been appointed and what should happen if one of the named executors is unwilling or unable to act.
What Happens If There Is No Alternate Executor?
If the only executor named in the Will does not want to act and there is no other executor able or willing to do so, this does not mean the estate cannot be administered.
Instead, someone else may apply to the court for a Grant of Administration with Will Annexed. The Will still governs how the estate is to be distributed, but the person appointed by the court administers the estate rather than the executor originally named in the Will.
WESA establishes an order of priority for who may apply. Generally, a beneficiary who has the consent of beneficiaries representing a majority interest in the estate has priority, followed by a beneficiary without that majority consent. In some circumstances, another appropriate person may be appointed by the court.
The application process is similar in some respects to the probate process in British Columbia, although different forms and requirements may apply.
The appropriate application will depend on the Will, the beneficiaries and the circumstances of the estate.
What If You Have Already Started Acting as Executor?
This is where the situation can become more complicated.
There is an important difference between deciding not to accept the role at the outset and deciding that you no longer want to continue after you have already begun administering the estate.
If you have already taken steps in your capacity as executor, simply signing a renunciation may not be the appropriate way to step away from the estate. You may have already intermeddled in the estate, and because of this, stepping down is no longer an easy option. The law is clear that simply inquiring about estate assets is not intermeddling. Making decisions about estate assets like closing bank accounts, selling assets and paying debts on the other hand, is clearly intermeddling.
Under WESA, a personal representative can apply to the court to be discharged from the role. This can be done whether or not a grant of probate has already been issued and whether or not the personal representative has already dealt with some of the estate.
If probate has already been granted, there may also be outstanding estate administration steps after probate that need to be addressed before another person can take over.
The court may also need to address who will continue the administration of the estate.
Because the process can depend heavily on what has already been done, an executor who has started administering an estate but no longer wants or is able to continue should seek legal advice before taking further steps.
What If an Executor Simply Refuses to Do Anything?
An executor should not simply ignore the appointment indefinitely.
If an executor named in a Will does not apply for probate, a person interested in the estate may take steps under BC’s probate rules requiring the executor to either accept or renounce the role or explain why the administration of the estate should not be granted to them or another person who is willing to act.
In some circumstances, the court can also pass over a person who would otherwise be entitled to act as personal representative, including where that person refuses to accept the role or act without formally renouncing.
For that reason, formally addressing the appointment is usually preferable to simply doing nothing.
Who Takes Over If an Executor Steps Down?
Who takes over will depend on the Will and the circumstances.
Another executor or alternate executor named in the Will may be able to act. If there is no executor willing or able to act, an eligible person may instead apply for a Grant of Administration with Will Annexed.
Importantly, changing the person responsible for administering the estate does not generally change the deceased person’s instructions in the Will. The Will continues to govern the distribution of the estate, even if someone other than the originally named executor ultimately administers it.
Should You Accept the Role of Executor?
There is no single answer. For many people, acting as executor is manageable, particularly with professional assistance. For others, the time commitment, family dynamics, complexity of the estate or personal circumstances may make accepting the role impractical.
Before deciding, it can be helpful to understand the size and complexity of the estate, the beneficiaries involved, the deceased’s assets and debts, and the responsibilities you would be taking on.
It can also be helpful to understand how long probate may take in BC, particularly if the time commitment involved in administering an estate is one of your concerns.
If you already know that you do not want to act, addressing the issue early can help avoid unnecessary complications and delays in administering the estate.
Need Help With an Executor Renunciation or Estate Administration in BC?
If you have been named as an executor and do not want to act, or you have already started administering an estate and no longer feel able to continue, it is important to understand your options before taking further steps.
At Westcoast Wills & Estates, our probate and estate lawyers assist executors, beneficiaries and families across North Vancouver, Vancouver, Burnaby, Surrey, Richmond and surrounding communities with probate and estate administration throughout British Columbia. We can help determine the appropriate next steps when an executor is unwilling or unable to act and assist with applications for probate or administration where required.
To get started or to learn more, contact our office to book a consultation today.
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