What an Executor Cannot Do in Alberta: Limits on Your Authority

Being named executor gives you real authority over someone's property, but that authority has edges. New executors often ask what they are not allowed to do, usually after a family member suggests a shortcut.

This article walks through the main limits that Alberta's Estate Administration Act and Surrogate Rules set out, and what can happen if they are crossed. Questions about a specific transaction depend on the will and the facts, so they are worth confirming with a lawyer.

This article covers the law of Alberta.

The standard you are held to

Section 5(1) of the Estate Administration Act requires a personal representative to 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. Specified Trustee Act duties also apply to personal representatives, with the terms adapted to estates.

Exception: a representative with a professional skill level above ordinary prudence, such as a trust company, must exercise that higher skill when acting professionally.

In plain terms, you cannot treat the estate as your own, ignore the will's instructions or sit on the estate indefinitely. Whether a particular arrangement, such as buying an estate asset yourself or holding estate money in your own account, is acceptable depends on the will and the circumstances, so get advice before you do either.

Acting before a grant, and acting alone

• 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 apply to restrain dealing with or intermeddling in a 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.

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 power is why skipping the notice steps or acting without agreement from a co-executor can cause trouble.

Paying out too early

A personal representative's core tasks include satisfying the estate's debts and obligations, as well as distributing and accounting for the administration. For an estate with a gross value of $100,000 or less, the notice to claimants is published at least once; for a larger estate, at least twice with 5 days or more between publications. A claimant must notify the personal representative not more than 1 month after the last notice is published.

After complying with the notice rules, a personal representative may distribute based on known claims and is not liable for unknown claims, although claimants may still pursue the beneficiaries who received the assets. If assets are insufficient, valid money claims are paid proportionately, subject to existing mortgages and common-law priority for funeral and administration costs. Paying one beneficiary or creditor first, outside those rules, is the kind of shortcut to avoid.

Pay, accounting and the consequences

• Compensation must be fair and reasonable, and the rules set no percentage or fixed fee.
• If the will fixes compensation, no greater amount can be charged or allowed unless the affected beneficiaries agree or the court orders otherwise.
• Unless the court orders otherwise, an accounting to beneficiaries 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, or a person interested in the estate may apply for one. The exception is a beneficiary of only a specific gift, who is entitled to an accounting limited to that gift and, if they have already received it, may not apply for an accounting order.

A 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 required notice or duties are not performed, the Court may, on application, order compliance, impose conditions, remove the personal representative, revoke a grant or make other orders.

Good-faith payments and conveyances made under a grant before its revocation remain valid.

What to do next

• Read the will closely and keep a record of every decision and payment.
• Give the required notices before acting without a grant.
• Hold off on distributions until the creditor notice steps are complete.
• Keep estate dealings documented so you can prepare the accounting.
• If you are unsure about a step, ask the Court for advice or direction, which discharges the duty if you act on it, unless it was obtained by fraud, concealment or misrepresentation.
• Talk to a lawyer about any transaction involving you personally.

Frequently asked questions