Who Acts as Executor when Someone Dies Leaving a Will?

When someone dies leaving a Will, who is entitled to act as their Executor? It may seem like an elementary question at first glance. Of course, most people would assume that whoever is appointed in the Will has priority to act as Executor.

In most cases, the Executor appointed in the Will is entitled to act as the Estate’s Executor, however, there are extenuating and unique circumstances that change things. In fact, an entire section of Alberta’s Estate Administration Act is devoted to this very question.

Check the Will First

The Wills & Estates laws in Alberta are clear that if a valid Will exists, the Executor named in the Will has priority to act. However, in some cases, the Executor appointed in the Will passes away before the Will-maker. If the Will-maker themselves then passes away without updating the Will, the Will itself is not invalidated, but there’s no longer an apparent Executor. This predicament is just one reason that it’s important to review your Will regularly and update it as necessary. Another precaution that most prudent Wills & Estates lawyers take to prevent such a situation, is to ensure that their client’s Will names at least one alternate Executor.

It’s also possible that the Executor named by the Will is still alive, but has lost mental capacity or is unable or unwilling to act for other reasons. The Executor named in the Will may be in ill-health, too busy, live far away, or otherwise be unable to handle the significant responsibilities that come with Executorship.

Regardless of whether the Executor named in the Will has passed away, or is unable or unwilling to act, the Estate laws in Alberta ensure that another interested party is able to “take the reigns” and act as Executor to ensure that the deceased’s assets are distributed according to their wishes.

It’s also worth mentioning that some Wills authorize a specific individual to appoint an Executor, rather than naming a specific individual as Executor. If there’s no Executor named in the Will, then the Executor appointed by that authorized individual has the authority to act.

What if the Appointed Executor is Deceased, Unable or Unwilling to Act?

If the Executor(s) named in the Will are all deceased, unable, or unwilling to act, and there isn’t someone else who has been appointed as Executor by an individual authorized in the Will to do so, the legislation sets out a priority sequence of who is entitled to act:

First Priority

If there is no Executor appointed by the Will or by a person authorized in the Will to appoint an Executor, the residuary beneficiary named in the Will has first priority to act as Executor. Nearly all Wills name one or more residuary beneficiary to receive the residue or remainder of the Estate once all debts and obligations have been paid and all specific gifts have been distributed. If there are multiple residuary beneficiaries, they would arguably have equal priority to act as Executor.

Second Priority

If there is no residuary beneficiary who is able and willing to act as Executor, a “life tenant of the residue of the Estate” who is named in the Will is entitled to act. A “life tenant” means someone who is entitled to benefit from the residue of the Estate until they die, at which time what is left of the residue goes back into the Estate. It’s fairly uncommon for a Will to name a life tenant of the entire residue of the Estate, but Wills are drafted in such a way from time-to-time. If you’re unsure of whether the Will in question creates a life tenancy, our experienced Wills & Estates lawyers can answer your questions.

Third Priority

If the residue of the Estate is not completely disposed of, i.e., perhaps the residuary beneficiary passed away before receiving their entire share of the Estate, it creates what’s called an “intestacy”. There are different rules and priority sequences that govern intestacy, and an experienced Wills & Estates lawyer can guide you through those rules. The beneficiaries under such an intestacy would have third priority to act as Executor of the deceased’s Estate.

Fourth Priority

If there is no residuary beneficiary named in the Will, no life tenant of the residue named in the Will, and no beneficiary under an intestacy where the residue is not completely disposed of in the Will, then a beneficiary receiving a specific gift in the Will is entitled to act as Executor of the deceased’s Estate

Fifth Priority

If no individual is alive from any of the categories described above, or, if such an individual exists but is unwilling or unable to act, then a contingent beneficiary of the residue of the Estate who is named in the Will is entitled to act as Executor of the Estate. For example, the Will may state: “I leave the residue of my Estate to my son Bob, or, if my son Bob predeceases me, then the residue of my Estate shall be paid and transferred to Bob’s wife, Sharon.” In this example, Sharon would be the contingent residuary beneficiary.

Sixth Priority

If there’s no:

• Executor named in the Will who’s willing and able to act;
• Executor appointed by someone authorized in the Will to appoint an Executor, who’s willing and able to act;
• Residuary beneficiary named in the Will who’s willing and able to act;
• Beneficiary under an intestacy if the residue is not completely disposed of in the Will, who’s willing and able to act;
• Beneficiary receiving a specific gift in the Will who’s willing and able to act; or
• Contingent beneficiary of the residue of the Estate, named in the Will, who’s willing and able to act; then
• A contingent beneficiary of a specific gift in the Will has the authority to act as Executor.

For clarity, here’s an example of a contingent beneficiary of a specific gift:

I DIRECT my Executor to transfer $10,000.00 to my friend Jane, or, if Jane has predeceased me, my Executor shall transfer $10,000.00 to Jane’s husband, John.

In this example, John is the contingent beneficiary of a specific gift.

Can the Alberta Government Act as Executor? (Seventh Priority)

The Executor of last resort is the Crown in Right of Alberta—in other words, “the government”. If the Crown (government) acted as Executor, they would do so through the Public Trustee’s Office and they would typically only act in extenuating circumstances.

So What About My Situation?

If you’ve recently experienced the death of a family member, friend, or loved one, and the Will isn’t clear as to who’s entitled to act as the Executor of the deceased’s Estate, we welcome you to contact the experienced Wills & Estates lawyers at West Legal for a free-of-charge, no-obligation consultation. The law in this area is complicated, and at times downright confusing, but an experienced Wills & Estates lawyer can help you determine whether you may be entitled to act as the Executor of a deceased’s Estate, and what your rights and responsibilities are, regardless of whether you’re entitled to act.

Contact a Calgary Wills & Estates Lawyer