Must you act as an executor?

 In estate, wills and estate

Introduction
It can be an honour to be named as an estate trustee (“executor”) in a will, but administering an estate in Ontario can be a time-consuming burden. If, however, you do not want to act as executor, you do not have to.

Renunciation
If you have not applied for a Certificate of Appointment of Estate Trustee (“probate”) or started to administer the estate, you can renounce your role as executor by filing Form 74.11[1] with the Estates Court. Form 74.11 is short and straightforward, and requires you to simply do the following:

  • Print the name of the testator, the date the testator died, the date the will was executed, your name, and the current date;
  • Sign your name in front of a witness;
  • Get the witness to sign the Form;
  • File it with the Superior Court of Justice.

Court Order
If you have applied for probate in Ontario or you have started to administer the estate, you usually can no longer renounce your appointment by simply filing Form 74.11. To be removed at this point, you must apply under subsection 37(1) of the Trustee Act[2] to an Ontario Court for a Removal Order. A court may refuse to give this order especially if you have started to administer the estate. Thus, if you are disinclined to act from the start, you should renounce as soon as possible.

If the Court does remove you as executor, you can still be liable for your acts or omissions as executor prior to your removal.[3] Thus, if you are removed, it would be prudent to provide the beneficiaries with your accounts and then get them to sign releases. If they will not sign releases, you may want to pass your accounts to the court.

 Notes
[1] Form 71.11 is called a “Renunciation of Right to Certificate of Appointment of Estate Trustee (or Succeeding Estate Trustee) with a Will.”
[2] Trustee Act, R.S.O. 1990, c. T.23 s. 37(1).
[3] Trustee Act, R.S.O. 1990, c. T.23 s. 5(2).

Recommended Posts

Leave a Comment

Ontario two willsremove the executor