In Alberta, the person who is authorized to administer an estate is called the Personal Representative of the estate.
The role is sometimes also referred to as the “executor”, “administrator”, or “estate trustee” by different institutions.
The deceased’s Will generally names a Personal Representative to deal with their estate – that person has first priority to apply for a grant of probate over everybody else.
A Personal Representative named in a will can start taking care of certain matters related to the administration of the estate right away after the death, even before the grant of probate has been issued. This is because a Personal Representative appointed in a Will gets their legal authority to act from the Will itself.
In contrast, where the deceased has passed away without a Will, nobody has legal authority to deal with the estate until the court has issued a grant of administration.
Of course, there are situations where the named Personal Representative does not have the mental capacity to act, does not want to act, or has passed away. If the first-appointed Personal Representative is unable or unwilling to act, sometimes the Will names an alternate. If no alternate is named, we must look to Alberta’s Estate Administration Act to determine who has priority to apply.
Who has priority to act as Executor when there is a will?
The Estate Administration Act (Alberta) states that unless the court orders otherwise, if a will exists, the priority to apply to be the Personal Representative is as follows, in descending order of priority:
- a Personal Representative named in the will, unless they are incapable or unwilling to act
- a Personal Representative appointed by the person expressly authorized in the Will to appoint a Personal Representative
- a residuary beneficiary named in the Will
- a life tenant of the residue in the Will
- a beneficiary under an intestacy if the residue is not completely disposed of in the Will
- a beneficiary receiving a specific gift in the Will
- a contingent beneficiary of the residue in the Will
- a contingent beneficiary of a specific gift in the Will
- the Alberta government.
Who has priority to act as Executor when the deceased did not leave a will?
If there is no will, then the following priority to apply as Personal Representative applies, in descending order of priority:
- the surviving spouse or adult interdependent partner of the deceased
- a child of the deceased person
- a grandchild of the deceased person
- a descendant of the deceased person other than a child or grandchild
- a parent of the deceased person
- a sibling of the deceased person
- a child of the deceased person’s sibling, if the child is a beneficiary
- the next of kin of the deceased person who are beneficiaries and who are not otherwise referred to in this list
- a person who has an interest in the estate because of a relationship with the deceased
- a person with a claim against the estate
- the Alberta government
Applying to be an executor? Speak to a lawyer today to find out your next steps.
As you can see from the above lists, situations may occur where two or more people have equal priority to apply to be the Personal Representative/Executor.
For more information about who has priority to act as Personal Representative or Executor of an Alberta estate, click here to speak to a lawyer for free.