What Standard of Care Must an Executor Meet in Alberta?

If you have been named as an executor in Alberta, or you are a beneficiary watching one, you may wonder what the law actually expects. The question is less about the list of jobs and more about how well, and in what spirit, those jobs must be done.

Alberta uses the term personal representative as the umbrella term for the person running an estate. This article explains the standard of care that applies to that role, how it differs for professionals, and what happens when someone falls short.

This article covers the law of Alberta.

The core duties in section 5(1)

Section 5(1) of the Estate Administration Act sets the basic standard. A personal representative must 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.

• Following the will: the will and the testator's intentions guide decisions, not personal preference.
• Ordinary prudence: the standard of care section 5(1) of the Estate Administration Act sets for a personal representative.
• Timely distribution: the law says as soon as practicable, not by a fixed date.

The Act and the Surrogate Rules do not set a one-year deadline to settle an estate. You may hear about an executor's year, but that is best understood as custom rather than a legal rule. What the law asks for is distribution as soon as practicable.

Higher standards for professionals and Trustee Act duties

Ordinary prudence is the baseline, but it is not always the ceiling. Under s. 5(3), a personal representative with a professional skill level above ordinary prudence, for example a trust company, must exercise that higher skill when acting professionally.

Section 5(2) to (2.1) also applies specified Trustee Act duties to personal representatives, with the terms adapted to estates. In practice, this means some of the duties familiar from trust law can apply to an executor too. Which ones apply to a particular situation is worth confirming with a lawyer.

How the standard connects to the work itself

The standard of care governs how the tasks are done. Under s. 7, a personal representative's core tasks are to identify the estate's assets and liabilities, administer and manage the estate, satisfy its debts and obligations, and distribute and account for the administration.

A representative is also liable for the duties and liabilities imposed by the Act, the will, other law or the Court, and can be compelled to discharge them. So the standard is not just a guideline. It comes with real responsibility.

What the court can do if duties are not met

If a personal representative fails to give required notice or perform duties, the Court may, on application, order compliance, impose conditions, remove the personal representative, revoke a grant or make other orders.

Any of these responses can follow either kind of failure, and the Court may also make other orders, so which one is used depends on your situation.

Getting directions and what to do next

A representative who is unsure how to proceed does not have to guess. Under s. 49, a personal representative may apply to the Court for advice or direction on any question about managing or administering the estate, and acting on that direction discharges the duty. The exception is a direction obtained by fraud, concealment or misrepresentation. A representative or an interested person may also apply to the court for directions at any time under Surrogate Rule 4(1).

• Read the will and keep its terms in front of you for every decision.
• Keep clear records of money and property received and paid out.
• Be open with beneficiaries and give required notices.
• Ask the Court for directions on genuinely uncertain questions.
• Remember that a representative with higher professional skill, such as a trust company, may be held to that higher standard.
• Speak with a lawyer if you are unsure of your duties or concerned about someone else's conduct.

A personal representative with a professional skill level above ordinary prudence, such as a trust company, must exercise that higher skill when acting professionally. Even then, asking the Court for directions remains available on uncertain questions.

Frequently asked questions