What Happens if an Executor Steals From an Estate in Alberta

Suspecting that an executor is taking or misusing estate money is stressful, especially when you are also grieving. Missing statements, unexplained sales or an executor who will not answer questions are common worries.

This article explains the duties an executor owes, what evidence is worth gathering, the difference between going to the police and going to the Court of King's Bench, and the tools that can protect estate assets in Alberta.

This article covers the law of Alberta.

What the law expects of an executor

A personal representative must act honestly and in good faith, in line with the will and the testator's intentions, and with the care, diligence and skill of a person of ordinary prudence. An executor appointed by the will is a trustee of any property not disposed of by the will, so trust-law duties of loyalty apply.

Being both executor and beneficiary is not itself a statutory breach, but a conflict arises when the executor's own interest competes with their duty to act honestly, in good faith and in line with the will. Not every mistake or delay is theft, and the standard for distribution is as soon as practicable. Your facts matter.

Evidence worth gathering

Beneficiaries often feel they need proof before acting, but you can start by writing down what you know and asking for an accounting. Accounting for the administration is a core task of the role. Under the Surrogate Rules, unless the court orders a longer or shorter period, a personal representative must give an accounting every 2 years after the date of death, and a person interested in the estate may apply for an accounting at any time.

• The will and any grant, plus notices you received.
• Bank and investment statements you are lawfully entitled to see.
• Records of sales or transfers of estate property, with dates.
• Emails, texts and letters with the executor.
• A list of payments you cannot explain and who received them.
• Any accounting the executor has given, and the date it was given.

Do not access accounts or documents you are not entitled to see, and do not confront the executor in a way that could prompt them to move money. A lawyer can tell you what to request and how.

Police or the Court of King's Bench?

These are different routes with different purposes. Whether possible criminal conduct is involved is a separate question from whether the estate is being administered properly. The Court of King's Bench deals with whether the executor is meeting their estate duties and what orders should follow. Whether a police report makes sense in your situation depends on the facts, and a lawyer can help you think it through.

For estate duties, Alberta.ca guidance says to try discussion first, and if that fails you or your lawyer may apply to the Court. The Public Trustee does not get involved in private disputes about how an estate is being administered.

Freezing assets and recovering funds

Before a grant issues, anyone may apply to the Court to restrain dealing with the deceased's property. A caveat blocks grant proceedings and lasts 3 months unless the Court orders otherwise.

After a grant, if the Court is satisfied that the representative has refused or failed to provide a required notice or to perform a duty or core task, it may, on application, order them to do so, impose conditions, remove them, revoke the grant, or make any other order it considers appropriate. Removal and revocation are options, not the automatic result, and the Court can choose a lesser remedy. Security is one example of a condition. If a grant is revoked, proceedings continue, and payments and conveyances made in good faith under it remain valid.

You can also apply for a formal passing of accounts by filing Forms ACC 6 and ACC 7 and serving the personal representative. A court may also appoint a representative to act during litigation, or issue a grant to the Public Trustee or another person in special circumstances. How funds can be recovered from a particular person depends on the facts and is worth discussing with a lawyer.

What to do next

• Keep everything and avoid deleting messages.
• Put your questions to the executor in writing.
• Ask whether other beneficiaries have noticed the same problems.
• Speak to a lawyer promptly, because asset protection may be time-sensitive.
• If you are asked to sign a release or consent, have a lawyer explain what it means for you first; a beneficiary who has signed a release is not served with a formal passing of accounts application.

Frequently asked questions