Can an Executor Refuse the Role in Nova Scotia? How to Renounce

Being named as an executor in someone's will is an honour, but it is also a real job. You may be grieving, living far away, or simply not able to take on the paperwork, the deadlines and the responsibility. Many people in that position want to know whether they have to say yes.

In Nova Scotia, being named in a will does not lock you in. This article explains how stepping aside (called renouncing) generally works, what to avoid doing first, how others can press you to decide, and how fees set out in the will fit in. Every estate is different, so use this as a map rather than a substitute for advice on your own situation.

This article covers the law of Nova Scotia.

You can decline the role, but how you do it matters

Being named as executor is an offer, not an order. If you do not want the role, the formal step is to renounce it. An executor renounces by completing Form 12 or by another method satisfactory to the registrar.

The Probate Court regulations do not set a deadline for renouncing. That does not mean you should wait. While the question is open, the estate may be stuck, and others who depend on the estate may be pressing you for answers.

The registrar is the court official who deals with probate applications for the district, and estate records are kept at the registrar's office in each district. If you are unsure which method the registrar will accept, that office is the place to ask.

The warning about acting in the estate first

The most important caution is this: an executor who has already acted in the estate may be treated differently when trying to renounce, so confirm with the registrar before taking any step. What counts as acting, and what the effect is, depends on the facts, and a lawyer can help you assess it.

If you are still deciding, it is sensible to keep your hands off the estate's affairs. The list below sets out things people often do out of kindness or habit that can complicate a later renunciation.

• Do not move, sell or give away the deceased's belongings.
• Do not pay bills or collect money owed to the estate.
• Do not deal with banks, insurers or investment companies as if you were the executor.
• Do not try to list, sell or transfer a house or other land.
• Do not tell others that you are accepting the role until you have decided.

Whether a particular step counts as acting in the estate depends on the facts. If you are unsure, ask the registrar first.

Why a renunciation matters to the probate application

Property registered only in the deceased's name generally cannot be transferred to beneficiaries without court approval, and the Probate Court gives the executor the legal authority to transfer it. So someone has to apply, and your decision affects who does.

An application for a grant of probate must be accompanied by the original will with proof of execution, proof of death, any required renunciations or security, and payment of the probate tax. If more than one executor is named and some will not act, their renunciations are part of what the application needs.

If an application or required material is incomplete, the registrar may issue a notice of rejection in Form 17 by ordinary mail. A missing renunciation is the kind of gap that can cause trouble, so it is worth confirming with the registrar what is needed for your particular estate.

Can someone force you to decide?

Yes, in a way. Someone who wants to force a named executor to accept or refuse the office may apply to court by citation. That application generally cannot be made until at least 20 days after the testator's death, unless the court finds circumstances that warrant an earlier date.

If you receive a citation, do not ignore it. A citation is a court process, and it is a good point to get legal advice about your options. Deciding early and renouncing properly can avoid a contested step and keep the estate moving.

Who steps in, and what about the fee in the will?

If you renounce, someone else can apply to administer the estate. The forms depend on the situation. Form 8 (or 8A) is for a grant of probate, Form 9 (or 9A) is for a grant of administration, and Form 10 (or 10A) is for administration with will annexed. Administration with will annexed is the usual label for a case where there is a will but no executor able or willing to act. Who has the right to apply, and in what order, depends on the facts and is worth confirming with the registrar or a lawyer.

Money is often part of the decision. On settlement, a personal representative may be allowed, beyond actual and necessary expenses, a commission not exceeding five percent of the amount received, and the court sets it. The court may consider the estate's size, the care and responsibility involved, the time spent, the skill and the success of the administration.

If the will itself sets a fee, that fee generally replaces the statutory commission unless the executor renounces it within the time limit. A fee agreement made privately between the testator and the proposed executor binds neither the court nor the beneficiaries unless it is written into the will. Note that renouncing the commission is a separate matter from renouncing the role.

What to do next

• Pause: do not act for the estate until you have decided.
• Locate the original will and keep it safe, since the original must be filed as an exhibit to an affidavit when applying.
• Contact the Registrar of Probate for the district and ask which renunciation method they accept and what else is needed.
• If you have already done anything for the estate, tell the registrar or a lawyer before you file anything.
• Tell the other executors and the family promptly, so a replacement can apply.
• Keep copies of everything you sign and any notes of what you did and when.
• Get legal advice if you received a citation, if the will is disputed or if the estate is complicated.

Frequently asked questions