Can an Executor Step Down After Getting Probate in BC?

You were named executor, you took out a grant, and now the role has become too much. Maybe the beneficiaries are in conflict, a dispute has started over the estate, or your own circumstances have changed. You may be wondering whether you can simply walk away.

In British Columbia, the answer depends on how far you have gone. This article explains the difference between renouncing and being discharged, what happens to the estate afterwards, and which responsibilities can follow you out the door.

This article covers the law of British Columbia.

Renouncing versus asking to be discharged

An executor who has not yet acted can renounce the executorship under section 104 of the Wills, Estates and Succession Act (WESA). Renunciation is a different thing from discharge, and it is generally a step for someone who has not started the job. The exact conditions are worth confirming with a lawyer.

If you have already taken out a grant, the route is different. A personal representative may apply to the court to be discharged under WESA s. 157(1). That is the way an executor steps aside after a grant has been issued.

What happens when the court discharges you

When the court discharges or removes a personal representative, it must appoint a substitute who consents to act. The exception is where administration is complete or a new appointment is unnecessary. The court may also appoint the substitute as trustee.

The court may require the substitute to provide security if the Supreme Court Civil Rules require it. Your grant is revoked, and the substitute takes over your authority and duties.

• You apply to the court; you cannot discharge yourself.
• A substitute must agree to act, so it helps to think early about who might do so.
• Your grant is revoked once the order is made.
• The substitute steps into your authority and duties.

Duties that do not simply disappear

Where a court removes a person as personal representative, that does not by itself remove the person as trustee of any trust created under the will; that needs separate relief. How this applies if you step down by your own application depends on your situation, so it is worth confirming with a lawyer. If the will sets up trusts, ask about this when you apply.

Accounting also matters. Executors, administrators and trustees under a will must generally obtain an order for passing their first accounts within two years of the grant or appointment, subject to exceptions in section 99 of the Trustee Act. A beneficiary can also require accounts to be passed annually by giving notice. A trustee who fails to pass accounts as required may be called before the court to explain why. The full text of section 99 and its exceptions should be checked for your situation.

Preparing accounts that show assets, receipts, disbursements and distribution is part of an executor's job, as is getting the court's approval of them. Keep good records so a substitute and the court can see what you did.

Personal liability and the court's discretion

Whether stepping down affects any responsibility for what happened while you acted depends on the facts, so it is worth confirming with a lawyer. If you have concerns about something that happened during your time as executor, gather your records before you apply so your position can be properly assessed.

If a trustee is or may be personally liable for a breach of trust but acted honestly and reasonably, the court may relieve the trustee wholly or partly of that liability under Trustee Act s. 96. This is a discretion, not a promise, and it turns on the facts.

If no suitable person will act: the Public Guardian and Trustee

Sometimes no family member or friend is willing to take over. The Public Guardian and Trustee (PGT) may administer an estate where no suitable person is willing or able to do so. The court must not appoint the PGT as administrator without its prior written consent, unless the PGT applies itself.

The PGT has its own limits. It may decline an estate whose assets are not enough to pay funeral costs and PGT fees, it usually requires consent from all or most known beneficiaries or heirs, and it does not resolve family disputes over who should administer. A referral can be made online, by calling 604-660-4444 or by emailing estates@trustee.bc.ca.

What to do next

• Gather the grant, the will and a list of what you have done so far.
• Pull together records of assets, payments and any distributions.
• Check whether the will creates trusts and whether you are a trustee.
• Think about who could act as substitute, and whether they would consent.
• Speak with a BC lawyer before applying, especially if there is a dispute or possible liability.

Frequently asked questions