Can an Executor Also Be a Beneficiary in Alberta?

It is common for the person chosen to run an estate to be someone who also receives a share of it, such as a spouse, an adult child or a sibling. If that is you, you may wonder whether the two roles clash and how to avoid disputes with the others who inherit.

This article focuses on the duties that apply to you as personal representative and the tools Alberta's rules give you to keep the process fair and transparent. Whether a particular situation creates a problem depends on the will and the facts, so a lawyer can confirm your position.

This article covers the law of Alberta.

The role comes with duties, whatever else you inherit

Section 5(1) of the Estate Administration Act requires a personal representative to act honestly and in good faith, follow the testator's intentions and the will, use ordinary prudence, and distribute the estate as soon as practicable. These duties apply to you in your capacity as personal representative, not as a beneficiary.

Specified Trustee Act duties also apply, with the terms adapted to estates. A personal representative with professional skill above ordinary prudence, such as a trust company, must exercise that higher skill when acting professionally.

In practice, the duties above are the yardstick for each decision you make as personal representative. How they apply to a particular choice depends on the will and your situation, so it is worth confirming with a lawyer.

Where conflicts tend to arise

• Deciding which assets to sell, keep or distribute, and when.
• Taking compensation for yourself.
• Paying debts and claims, which affects what is left for each beneficiary.
• Communicating with other beneficiaries about what is happening.
• Using estate property, such as living in a house that belongs to the estate.

Each of these is a place where a beneficiary might question your motives. The best protection is a clear record and open communication.

Compensation and your own share

Personal representatives may receive fair and reasonable compensation for their responsibility in administering an estate, and the rule sets no percentage or fixed fee. Factors include the estate's gross value, receipts and disbursements, complexity, skill required, time spent, delegated tasks and the number of personal representatives named. Additional compensation is possible for extra roles such as managing a business, unusual difficulties or instructing on litigation.

If compensation is fixed in the will, no greater amount can be charged or allowed unless the affected beneficiaries agree to vary it or the court orders it. Because you may be both paid for the role and receive a gift, it is sensible to keep your records of each clearly labelled. How the two fit together depends on the will, so it is worth confirming with a lawyer.

Transparency tools that protect you

A personal representative must account at regular intervals by preparing financial statements of money and property received, distributed and paid out, and giving them to the beneficiaries. Unless the court orders otherwise, an accounting is due every 2 years after the date of death or the end of the last accounting period. The court may require an accounting at any time, and a person interested in the estate may apply for one.

A beneficiary of only a specific gift is entitled to an accounting limited to that gift, but if they have already received it, they may not apply for an accounting order under rule 97(3). A person interested in an estate may also apply for formal passing of accounts, and you may apply to dispense with it.

If you are unsure about a decision, you can apply to the Court for advice or direction on any question about managing or administering the estate. Acting on that direction discharges the duty, unless it was obtained by fraud, concealment or misrepresentation. A personal representative or interested person may also apply for directions under the Surrogate Rules at any time.

What to do next

• Keep estate money and records separate from your own.
• Record every receipt, payment and decision, with dates.
• Share regular updates and financial statements with the other beneficiaries.
• Do not pay yourself without checking the will and the compensation rules.
• Consider asking the Court for directions on any contested decision.
• Speak with a lawyer early if a beneficiary raises concerns.

If you fail to give required notice or perform your duties, the Court may order compliance, impose conditions or remove you. Careful records are your best protection.

Frequently asked questions