Estate Trustee or Executor for a Will

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Curious101

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Estate Trustee or Executor for a Will
« on: May 07, 2015, 10:29:05 AM »

In Ontario can an undischarged bankrupt be an Executor of an Estate if named to the position in a Will, or if there is no Will, can they apply to be an Estate Trustee without a Will?  My Mom is dying and I believe she made out a Will naming me as Executor but I don't want to reveal my undischarged bankruptcy status to my sibling.  If she dies without a will, my brother seems to expect that I'll apply to manage the estate as he says his job keeps him too busy to do this.  If I can manage the Estate, I know my share will go to my Trustee, but this way my brother doesn't have to find out I'm undischarged from my bankruptcy.  I've looked at the form for Estate Trustee without a Will and I don't have to disclose my bankruptcy status on the form and I see nothing in the bankruptcy act preventing me from being an Executor or Estate Trustee.  Is there anything that would prevent me from acting in this capacity?

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NotATrust-E

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Re: Estate Trustee or Executor for a Will
« Reply #1 on: May 11, 2015, 12:41:59 PM »
Remembering that free advice is worth what you pay for it...

I couldn't find anything in the Bankruptcy Act or on the Estate Trustee Without a Will (Form 74.14 - Ontario). My concern would be Section 3 of the Ontario Trustee Act (canlii.ca/t/2rg), which I have reproduced below. I've found that various other jurisdictions including New Brunswick and BC both have similar sections. However, this may only apply if there is another individual that is willing to act. You may wish to talk to another trustee about getting your discharge (if practical) or asking a trustee if you would be eligible to act.

3.  (1) Where a trustee dies or remains out of Ontario for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on the trustee, or refuses or is unfit to act therein, or is incapable of acting therein, or has been convicted of an indictable offence or is bankrupt or insolvent, the person nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may by writing appoint another person or other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the place of the trustee dying, remaining out of Ontario, desiring to be discharged, refusing or being unfit or incapable.


 

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