What Is an Executor De Son Tort? Risks in British Columbia

After a death, someone has to cancel the phone, secure the home and talk to the bank. Often a family member simply starts. The old legal label for a person who takes on an executor's job without being properly appointed is an executor de son tort, which loosely means an executor by their own wrong.

This article explains in general terms why acting without authority is risky in British Columbia and how to put yourself on safer ground. The label itself has a long history in the common law, so how it applies to you depends on what you did, and a lawyer can assess that.

This article covers the law of British Columbia.

Why authority matters

A deceased person's estate vests in the personal representative once that person takes office or is appointed. Until then, it vests in the court if there is no executor or no will. A grant of probate or administration gives the personal representative exclusive authority to administer the estate.

So being a family member, or even being named in the will, does not by itself let you deal with the estate's property as if you were in charge. Before a grant, your role is limited, and the more you do that looks like administering the estate, the more risk you may take on.

The main risks of acting without authority

The details of how the law treats a person who has intermeddled depend on the facts, but several concrete risks are clear from the rules about administration.

• Tax clearance. Before distributing property they control, a legal representative must obtain a clearance certificate from the Minister of National Revenue. One who distributes without it is personally liable for the unpaid tax, up to the value of the property distributed. Whether this reaches someone who has not been formally appointed depends on the facts, so it is worth confirming with a lawyer.
• Personal liability for debts. An executor who distributes the estate while debts remain unpaid may be held personally liable for them.
• Institutions may refuse to deal with you. Each financial institution sets its own policy, often a maximum amount it will release without a grant of probate.
• Conflict with those entitled. Beneficiaries or others may challenge what you did, and a court can be asked to deal with the administration.

If you have already paid bills, moved money or given away belongings, keep a clear record of what you did and why. Do not delete or alter anything, and do not make further distributions until you have advice.

If you are named as executor but have not acted formally

A named executor may renounce. Unless the court orders otherwise, the estate is then administered as if that person had never been named executor. A person renounces by filing a Form P17 Notice of Renunciation, or by being deemed to renounce under Rule 25-11(5).

Any interested person may require a named executor who has not applied for probate to either accept or renounce, or to explain why administration should not go to another person who is willing. A cited executor who does not obtain probate within 6 months after service of the citation is deemed to have renounced, unless the court extends the time.

If no named executor will or can apply, the court may grant administration with will annexed to others in the statutory order of priority. If you were helping but do not want the role, tell the family and consider renouncing rather than drifting.

How to get proper authority

Applications for probate or administration are made at any BC Supreme Court registry. An applicant must make a diligent search and inquiry for the deceased's property and liabilities, and must submit an Application for Search of Wills Notice, even if they believe they already hold the original last will.

The applicant must first deliver a notice of proposed application (Form P1) to the persons the Supreme Court Civil Rules require. With a will, that means the living named executors and alternate executors and each beneficiary. With no will, it means the intestate successors and creditors whose claim exceeds $10 000. The applicant must then wait at least 21 days after delivering the notice before applying.

The application must include two certificates showing the results of a wills notice search, and an affidavit of assets and liabilities, Form P10 for a domiciled estate.

What to do next

• Stop making payments or transfers from the estate, other than urgent protection of property, until your role is clear.
• List what you have already done: bills paid, accounts accessed, items moved or given away.
• Keep receipts, statements and messages.
• Do not distribute anything to anyone, including yourself.
• Find the will and confirm who is named as executor.
• Speak to a lawyer about whether to apply for a grant, renounce or step back.

Frequently asked questions