The executor named in the will won't act and won't step aside either. What can I do?
I’m named in my dad’s will as an executor, along with my aunt. They had a strained relationship in the end, so my aunt says she doesn’t feel right taking on the job. But she’s also saying she won’t sign the paperwork to step down as executor. How can I move things forward?
Carmela
Burnaby, BC
Navigating a family disagreement about an estate while you're grieving can be exhausting. If the co-executor refuses to apply for probate but won’t formally give up their position, you have a few legal options.
One key question you’ll have to answer is whether your aunt has already started dealing with the estate. Legally, this is called intermeddling. It means someone has acted in a way that shows they’re intending to take on the executor role. Examples include collecting money owed to the estate and paying bills from estate funds. Even holding yourself out as executor to others can count as intermeddling. Arranging the funeral or simply asking questions about what's in the estate don’t count.
If your aunt has not taken steps to deal with the estate, you can go ahead and apply for a grant of probate that “reserves her right” to apply for a grant. (This means that she still has the legal right to apply to act as executor at a later date.)
When you apply for probate, you can:
Give notice of your probate application to your aunt as co-executor (using form P1).
Tell the registry that there’s an executor whose right should be reserved on the grant. In the schedule to form P2, there’s a question where you can do this.
Include the name of the executor whose rights have been reserved, if you’re filing a grant with your application (form P19).
In other words, you can move forward without your aunt, as long as you give her proper notice and note her status on the probate forms.
If your aunt has taken steps to deal with the estate, you can serve her with a legal document called a citation (form P32). The citation must clearly identify the will in question. The citation gives her 14 days to respond. She can either state that she intends to apply for probate with you or officially decline by signing a form to renounce.
If she ignores the citation and doesn’t respond in time, the law will treat her as having renounced. Once this happens, you can proceed to apply for probate.
Nicco Bautista
Lumina Law
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