Can You Refuse to Be an Executor in Ontario? How to Renounce

You open a will and find your name as executor. Maybe you live far away, are grieving, or simply do not want the responsibility. It helps to know that you have choices, and that the best time to make them is early.

This article explains in plain terms whether you can say no, how renouncing works in Ontario, who takes over afterwards, and what changes if you have already begun to act.

Do you have to act?

No. A person named as estate trustee in a will does not have to act. The will records the deceased person's wish, but it does not force anyone to take on the role.

Being an executor involves real work and real responsibility, including dealing with assets, debts, tax returns and distribution. If you think you cannot or should not do it, declining is a legitimate choice. To help you decide, here are some of the duties that come with the role:

• As legal representative, you must file all required returns for the deceased, make sure any balance owing is paid before distributing the estate, and confirm that all balances owing to the CRA are resolved.
• If you distribute assets without a clearance certificate and tax is owing, you are personally liable for the unpaid amounts, up to the value of the assets distributed.
• You must keep accurate records of the estate's assets and transactions.
• Within 180 calendar days of receiving a certificate of appointment, you must file an Estate Information Return.

On the other side of the ledger, an estate trustee is entitled to a fair and reasonable allowance for their care, pains and trouble and time spent, as allowed by a judge of the Superior Court of Justice. If the will itself fixes the allowance, that section does not apply.

How renouncing works

Renouncing means formally giving up the right to act. In Ontario it is done on Form 74G (Part A). Under Rule 74.04(1)(e)(i) of the Rules of Civil Procedure, a probate application must include a renunciation from every living named estate trustee who has not joined the application.

The effect is set out in the Estates Act, s. 34. When a named executor renounces probate, their rights in respect of the executorship wholly cease, and administration passes as if they had never been appointed, without any further renunciation.

• Read the will to see who else is named, including any alternates.
• Decide before you take any steps on the estate's behalf.
• Complete the renunciation on Form 74G (Part A).
• Tell the other named executors or the family so the application can move forward.

What happens after you renounce

If another executor is named and willing, that person can apply. Where there is no will, or the named executor refuses to prove the will, the court may grant administration to the spouse (including a person in a conjugal relationship outside marriage), the next of kin, or both, as the court thinks best. How this works in other situations where no one named can act depends on the facts, so it is worth confirming with a lawyer.

There is an exception. The persons entitled, or a majority of those resident in Ontario, may ask that another person be appointed, and the court may appoint someone else where it is necessary or convenient.

Where a named estate trustee cannot act and a replacement is needed under the will, Rule 74.06 governs a certificate of appointment of succeeding estate trustee with a will, and it requires a Form 74G renunciation from every living named estate trustee. How this plays out in a particular estate depends on the facts, so it is worth confirming with a lawyer.

If you do not decide, others can force the question

Silence does not stall an estate forever. The court may summon a named executor to prove or refuse to prove the will, and if the executor does not appear, their right to the executorship wholly ceases. Also, any person who appears to have a financial interest in the estate may bring a motion for an order requiring someone to accept or refuse appointment as estate trustee with a will.

So if family members are waiting on you, expect pressure to give a clear answer.

Already started acting? What to do next

Declining is easiest before you act. An executor cannot use the Trustee Act s. 2 procedure for retiring by deed; an executor who wants to step down after acting must apply to court. The Superior Court of Justice may remove a personal representative and appoint another proper person, and an executor who wants to be relieved may apply. As a general principle, doing things that look like acting as executor can complicate a later renunciation, so ask a lawyer before you do anything.

• Do not pay bills, sell items or deal with accounts until you have decided.
• Keep a note of anything you have already done.
• Locate the will and the list of named executors.
• Speak to a lawyer if you have already taken steps.

Frequently asked questions