How to Renounce as Executor in Saskatchewan and Who Applies Instead

Being named as executor in a will is an honour, but it is not an obligation you must accept. Some people are too busy, live too far away, are unwell, or simply do not want the responsibility. If that is you, the question is how to step aside properly, and what happens to the estate afterward.

This guide is also for family members who have to work out who takes over. It covers giving up the role before any grant is issued. It does not cover removing an executor who has already been appointed by the court, which is a different situation worth discussing with a lawyer.

This article covers the law of Saskatchewan.

Renouncing: giving up the right to be executor

Renouncing means formally telling the court you will not act as executor. In Saskatchewan, a named executor who gives up the right does so by signing a Renunciation of Probate (Form 16-16). It is one of the supporting forms that goes with an application for a grant. Exactly how it fits your situation is worth confirming with a lawyer.

Whether to renounce is a personal decision with real consequences, because the paperwork is what lets someone else step in. If you are unsure, for example because you have already started handling estate matters, it is sensible to talk to a lawyer before you sign anything.

What kind of grant the estate needs afterward

There are three kinds of grant. Letters Probate are for estates where the will names an executor who acts. Letters of Administration are for estates with no will. Letters of Administration with Will Annexed are for estates where there is a will but no executor is named, or the executor cannot or will not act.

So when a named executor renounces, the application changes. Where there is a will but the applicant is not the named executor, the application is an Application for Grant of Administration with Will Annexed (Form 16-11B). The will still guides who gets what. The difference is who is appointed to carry it out.

Who has priority to apply instead

Priority is set by section 10 of The Administration of Estates Act. It starts with executors, then residuary beneficiaries, and continues down to the official administrator. A residuary beneficiary is someone who receives what is left after specific gifts and debts are dealt with.

If you are a family member trying to work out who steps in, a few practical points help:

• Check whether the will names more than one executor, since executors come first in the priority order.
• If no executor will act, look at who the residuary beneficiaries are, since they come next.
• The official administrator is at the end of the list, so it is the last resort rather than the first choice.
• Where a person with a prior or equal right does not want to apply, they may need to sign a Renunciation of Administration (Form 16-26).

Other forms and the self-help package

The Court of King's Bench self-help probate package is for use only where there is a will, the named executor is the applicant, and two witnesses signed the will. Because a replacement applicant is not the named executor, that package cannot be used in this situation. A lawyer can help you prepare the correct application.

An Administration Bond (Form 16-31) may be required. Whether one is needed depends on the circumstances, so be prepared for the possibility.

Fees and duties for the replacement applicant

Court fees on a standard probate application are a Local Registrar fee of $200 plus a levy of $7.00 per $1,000 (or portion thereof) of Total Part 1 Assets on the Statement of Property. For example, a Part 1 estate of $500,000 produces a levy of $3,500, plus the $200 fee. Whether the same fees apply when someone other than the executor applies for Letters of Administration with Will Annexed depends on the situation, so it is worth confirming with the court registry or a lawyer.

The person appointed takes on the executor's common duties. These include finding the will, notifying agencies, securing and valuing assets, publishing a Notice to Creditors, paying debts, filing tax returns and obtaining a CRA Final Clearance Certificate, and accounting to beneficiaries within two years.

What to do next

• Decide whether you really want to renounce before you sign Form 16-16, and talk to a lawyer first if you have already started handling estate matters.
• Find out who else is named as executor, and who the residuary beneficiaries are.
• Talk with the family about who is willing to apply, and gather their consent where needed.
• Confirm which forms are needed, including Form 16-16, Form 16-26 and Form 16-11B.
• Ask a lawyer to confirm the steps if the estate includes land, minor beneficiaries or debts that may exceed assets.

Frequently asked questions