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Estates & Wills & Trusts

The earlier the better to quit executor role

The sooner the executor of an estate realizes that they don’t want to fill the role, the better, Toronto wills and estates lawyer Elinor Shinehoft tells AdvocateDaily.com.

Shinehoft, principal of Shinehoft Law, says there are all kinds of reasons why a trustee might want to renounce their role. The inherently unpredictable nature of death means people are not always in a position to carry out the duties expected of them from a practical point of view, she explains, adding that it’s a relatively simple process for executors to step away before they are formally appointed following a person’s death.

“All you have to do is file a document with the court saying that you are renouncing the position,” Shinehoft says. “Things get a little more tricky if you’ve already started the process and are fulfilling the duties of trustee by contacting creditors and beneficiaries because you will need to get the permission of the court.”

But judges are not willing to accept just any excuse from an executor looking to quit, she warns.

“The fact that you don’t like it because it’s burdensome is not going to be good enough, and you could be forced to stay on,” Shinehoft says. “The court wants to make sure you have a valid reason so that the process goes smoothly and the estate doesn’t end up without an executor.”

She says trustees who are struggling with their duties will be reminded of their ability to hire professional advisers, such as lawyers or accountants, to help them with administrative tasks including the filing of taxes and contacting beneficiaries and creditors.  

“It’s fine to delegate certain tasks, although you remain responsible for making sure it’s all done properly,” Shinehoft says.  

Judges are more likely to be swayed in favour of an executor who wishes to step down if they are sick or scheduled to spend extended time out the country for personal or professional reasons, leaving them unable to deal with the day-to-day running of the estate, she says.

But trustees who leave part way through their mandate will need to provide the court with a detailed accounting of all the work they have done to date, Shinehoft says.

Testators hoping to minimize the chances of disruption in the event a trustee can’t take on the role should select at least one alternate, she says.

“It’s always easier and keeps the process moving smoothly if you've already named another person.”

However, the most effective measure is for testators to consult their choice of executor before they draft a will, says Shinehoft.

“You want to make sure that whoever you want to name as trustee is fine with it, and that they understand what the role entails, because it really is more of a burden than an honour, and many people don’t realize that,” she says. “And if you find out that your preferred choice is not interested, then it’s going to save the trouble of them renouncing and having to find someone else.”

Shinehoft says testators can make the job more appealing by keeping their affairs in order and filling in their prospective trustee on the existence and location of key assets and documents.

“It could be as simple as a list in a drawer of all bank accounts and passwords, just so they know what they’re dealing with,” she says. “That might alleviate much of the stress and problems that come with the role.”

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