Can You Refuse to Be an Executor in Manitoba? Your Options

Being named executor is an honour, but it is not an obligation you must accept. You may be unwell, live far away, be too busy, or simply not want to manage a difficult family situation.

This article explains how declining works in Manitoba, which forms are involved, and what happens to the estate after you step aside.

This article covers the law of Manitoba.

Yes, you can renounce

A named executor can renounce probate. Under The Court of King's Bench Surrogate Practice Act, renouncing ends the executorship and any trusteeship, and the estate's representation and administration pass as if you had never been named executor, without any further renunciation.

There is an exception. The renunciation can expressly reserve the trusteeship, in which case the trusteeship under the will does not end under that section.

If you are weighing whether to accept the role instead, a personal representative is entitled to a fair and reasonable allowance for care, pains, trouble and time spent on the estate, and the Trustee Act sets no fixed percentage. A fee fixed in the will or another document signed by the testator is not valid unless a judge approves it. Where a lawyer is the executor and provides necessary professional services, the court may increase the allowance by a fair and reasonable amount.

Do not simply ignore it

The court may summon a person named executor in a will to prove the will. A named executor who does not want the job should renounce rather than ignore the matter. Leaving the question open does not settle whether you will act, so it is better to deal with it directly.

The forms you need

The form to renounce as a named executor is Form 74N, Renunciation of Probate or Letters of Administration with Will Annexed. It is filed with an Affidavit of Execution of Renunciation, Form 74X. Form 74X is sworn by a witness to the signing of the renunciation.

Be careful not to use the wrong form. Form 74O, Renunciation of Administration, is a different form used by a person entitled to letters of administration on an intestacy, for example next of kin, not by a named executor. Older material may show different form numbers, so confirm the current forms before you sign anything.

What happens to the estate afterward

If there is no other executor willing to act, someone else may apply to administer the estate. Where the will names no executor or the executors will not act, the request is made on Form 74C, Request for Letters of Administration with Will Annexed. An administrator must generally give a bond totalling double the sworn value of the property, though a judge may waive it if all beneficiaries are capable adults who consent.

An executor who has renounced or has not proved the will is excluded from the Trustee Act definition of personal representative. An executor intending to renounce may still appoint new trustees without thereby accepting the office of executor.

Whoever takes over faces the same steps you would have. Before a grant of probate or administration, the applicant must file a true and complete inventory of everything the deceased owned at death, verified by oath, on Form 74B. Where the court finds the total value of the property does not exceed $10,000, summary administration is possible using Form 74FF and Form 74GG. Before distributing assets, the legal representative should get a CRA clearance certificate, Form TX19. While a suit over a will's validity is pending, the court may appoint an administrator pending litigation, who may receive reasonable remuneration out of the estate as the court sets.

If you have already started, and next steps

Renouncing under section 18 of the Surrogate Practice Act is one route, and it ends the executorship and any trusteeship unless the renunciation reserves the trusteeship. A different route applies to a trustee who wants to be discharged from a trust under the Trustee Act: section 7(1) requires a deed and the consent of co-trustees. Whether you can withdraw a renunciation once it is filed, or how earlier actions affect your position, depends on the facts and is worth confirming with a lawyer.

• Decide early, before you take control of any estate assets.
• Avoid acting as executor in the meantime, such as paying bills or selling property.
• Tell the other named executors and the family that you plan to renounce.
• Ask a lawyer to confirm the current forms and whether to reserve the trusteeship.
• Keep copies of everything you sign and file.

Frequently asked questions