It can be an honour to be named as estate executor (liquidator),* as it signifies a person’s trust that you will carry out their wishes as intended. Sometimes individuals accept the position without fully understanding the duties or responsibilities that come with the role. Or, circumstances can change and the person may no longer be able to assume the role, perhaps due to health issues, incapacity, job change or a move to another province or country, which can make the role challenging or difficult.
What happens if the named executor decides that they aren’t able to carry out the duties — or maybe that they no longer want to?
It is possible to step down from the position. If the executor hasn’t yet applied for probate, they are generally able to renounce the role as executor by providing formal documentation to the courts.** However, if the executor has applied for probate and started administering the estate (called “intermeddling”), renouncing the role may be more difficult. They may need to apply to the courts and provide an explanation of why they wish to step down. 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 court 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 start about the role.
As you consider your own estate’s executor…
• Make sure the person you ask is comfortable in the role;
• Consider naming an alternate executor;
• Periodically review your named executor’s circumstances to account for changes. Reach out to them to discuss their current capacity to ensure they are still willing and able;
• Don’t be afraid to consider the support of a corporate executor, to act alongside an appointed executor or as sole 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 this is a fiduciary role with legal obligations and liabilities;
• If your circumstances change, make sure to let the person know. This includes if you plan on moving jurisdictions, face health issues or have a change in responsibilities that make it difficult to assume the role.
• Don’t be afraid to say no if you don’t think you can handle the obligation.
As always, consult an estate planning professional as it relates to your particular situation.
*For the purposes of this article, we refer to the person appointed to settle the estate as the executor, also called the liquidator in Quebec and may go by other terms based on province of residence.
**May vary by province: i.e., in QC, the liquidator cannot refuse the role if they are sole heir.