Can You Renounce Being an Estate Trustee in Ontario?

Being named as executor in someone's will is an honour, but it is not an order. In Ontario the legal term is estate trustee, and many people named in a will realize, after a death, that they cannot or do not want to take on the work.

This article explains what renouncing means, how it differs from stepping away after you have already begun, and what happens to the estate when the named person says no. It is general information, not advice on your situation.

What renouncing means

To renounce is to formally decline the role of estate trustee before you take it on. The will names you, but the court is what confirms your authority. Probate is the court procedure that gives someone authority to act, confirms the authority of a trustee named in a will, or approves a will as valid.

If there is a will, the estate trustee named in it usually applies for that authority. If you do not want to act, the beneficiaries may nominate another person. That is why a clear, written decision is better than simply doing nothing.

Renouncing before you have started

The court application can require different documents depending on the case, and these can include renunciations or consents on Form 74G. Rule 74.04 lists the forms needed for each situation. Which forms apply to you depends on who else is named and who will apply, so it is worth confirming with a lawyer.

• Hold off on paying bills, moving money or dealing with property while you are deciding, and ask a lawyer how any steps you have already taken could affect your position.
• Tell the other people involved, such as any co-trustee, the alternate named in the will and the beneficiaries.
• Put your decision in writing and keep a copy.
• Ask whoever is preparing the application whether a signed renunciation is needed in your case.

Stepping away after you have started

Resigning after you have begun is a different question from renouncing. Once you act, you may have taken on real duties. After a certificate is issued, estate trustees wind up the deceased's affairs, pay taxes, bills and other debts, collect the estate assets and distribute the residue to those entitled to it. Whether and how you can hand those duties over depends on how far you have gone, and it is a point to raise with a lawyer before you stop.

If a certificate has already been issued, whether someone else can take over from you, and how, depends on your situation, so it is worth confirming with a lawyer. The exact steps depend on the facts.

Two protections are worth knowing about. A trustee is entitled to a fair and reasonable allowance for care, pains, trouble and time spent, as a judge of the Superior Court of Justice allows, so keep a record of what you did and when. And a representative who distributes estate assets before getting a CRA clearance certificate is personally liable for any tax debt, up to the value of the assets distributed.

What happens to the estate if you say no

Declining does not end the estate. The estate still has to be dealt with, and the options depend on whether there is a will and who is available to act. Here are some of the ways the process can deal with that.

• If the named trustee declines or cannot act, the beneficiaries may nominate another person.
• If there is no will, the married spouse or common-law partner usually has first right to apply, followed by a close adult relative, and the court may appoint the most appropriate relative.
• A bond is required when the applicant was not named as estate trustee in the will. It is generally twice the estate's value unless a judge orders otherwise, and a judge can decide on a motion to waive it.

For a small estate, the bond rules differ. Under the Estates Act, no bond is required for a small estate unless a beneficiary is a minor or is incapable, subject to the rule for non-resident applicants.

What to do next

• Find the original will and check who else is named as trustee or alternate.
• Stop any steps that look like acting as trustee until you have decided.
• Decide whether you have already done anything that counts as acting, and write it down.
• Tell the beneficiaries and any alternate trustee your decision promptly.
• Speak with a lawyer about the right renunciation or resignation steps for your situation.

Frequently asked questions