What an Executor Cannot Do With Estate Property in Alberta

Being named executor gives you real power over a person's property, but that power has edges. In Alberta the statute calls you a personal representative, and the law treats the estate as something you hold for others, not something you own.

This article explains the main limits on what you can do, what changes before and after a grant, and what can happen if you cross the line. It is general information, and a lawyer can confirm how it applies to your estate.

This article covers the law of Alberta.

Your authority exists for the estate, not for you

Subject to the will and the law, a personal representative may take possession and control of estate property and do what the deceased could have done. That is a broad power, but it comes with a standard of conduct. You 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.

A personal representative with a higher professional skill level, such as a trust company, must exercise that higher skill when acting professionally. Certain Trustee Act duties also apply to personal representatives, adapted to estates.

Keep estate funds identifiable and keep records of everything in and out. Whether a particular transaction is allowed can turn on the will and the facts, so ask a lawyer before you do anything that benefits you personally.

Limits before and after a grant

Acting before a grant is possible in some cases, but it is more restricted. A personal representative named in a will who acts without a grant must give notice to beneficiaries, family members, spouses, adult interdependent partners, the Public Trustee and others. Before a grant issues, anyone may also apply to restrain dealing with or intermeddling in the deceased's property.

After a grant issues, only the personal representative named in it may act for the estate until the grant is revoked or the representative is discharged. Co-personal representatives must act unanimously unless the will or the Court orders otherwise.

If you do not want the role, or cannot take it on, you can renounce in Form GA11 or by a method approved by the court. A person who renounces loses authority, including trusteeship authority unless it is expressly reserved, and later applications proceed as if they were never named. How this applies to you depends on your situation, so it is worth confirming with a lawyer before you act informally while undecided.

Money, payments and compensation

• Compensation must be fair and reasonable for your responsibility in administering the estate, and the rules set no percentage or fixed fee.
• Factors include the estate's gross value, receipts and disbursements, complexity, skill required, time spent, delegated tasks and the number of personal representatives named.
• If the will fixes your compensation, no greater amount can be charged or allowed unless the affected beneficiaries agree to vary it or the Court orders it.
• You should not distribute early without following the notice rules. After complying with them, you may distribute based on known claims and are not liable for unknown claims, though claimants may still pursue the beneficiaries who received the assets.

If the estate cannot cover all debts, valid money claims are paid proportionately, subject to existing mortgages and common-law priority for funeral and administration costs. Paying some people ahead of others, including yourself or family, without checking the rules is risky.

What can happen if you cross the line

A personal representative is liable for the duties and liabilities imposed by the Act, the will, other law or the Court, and can be compelled to discharge them. If you fail to give required notice or perform your duties, the Court may, on application, order compliance, impose conditions, remove you, revoke a grant or make other orders.

You must also account for what you do. Unless the court orders otherwise, an accounting is due every 2 years after the date of death or the end of the last accounting period. The court may require an accounting at any time, and a person interested in the estate may apply for one. Good-faith payments and conveyances made under a grant before it is revoked remain valid under section 44 of the Estate Administration Act.

What to do next

• Read the will and note exactly what it allows and requires.
• Keep estate money and property separate from your own, with written records.
• Do not take compensation, buy estate property or favour one beneficiary without advice.
• Give required notices and follow the notice rules for claims before distributing.
• If you are unsure about any step, you may apply to the Court for advice or direction, and acting on that direction discharges the duty unless it was obtained by fraud, concealment or misrepresentation.

Frequently asked questions