Being a Personal Representative – How can things go wrong?

How can things go wrong?

What if I have disagreements with another personal representative?

If there are two or more personal representatives, the Estate Administration Act says they must act unanimously. If you have serious disagreements with the other personal representative(s), you may need to contact a lawyer, as disputes may have to be settled in court.

If there is more than one personal representative, you are legally responsible for what the other personal representative does. For example, if the other personal representative takes funds from the estate, you have to make up the loss though you can then sue the other personal representative.

What if the beneficiaries are fighting?

If the beneficiaries are not in agreement as to how the personal representative intends to proceed, the personal representative should seek advice of an estate lawyer to clearly understand the will and its direction.

How the personal representative proceeds with the direction of the will is up to him or her, but keeping the peace may help avoid even more problems later. Setting a plan to sell the assets and then sharing that strategy with all the beneficiaries at the same time may build trust and provide a setting where they hear each other ask questions and get answers. In addition, any agents hired to sell assets could meet with everyone at the same time.

Keeping all beneficiaries informed helps develop confidence in the personal representative’s actions. Ultimately, however, disputes may have to be settled in court. A personal representative can always make an application to the Court of Queen’s Bench for advice and direction.

What if I do not exactly follow the directions in the will?

A personal representative must follow the wishes of the testator as expressed in the will. If a personal representative fails to act reasonably, or acts in a way that is not at all consistent with the will, the beneficiaries can take legal action. A personal representative who acts in an irresponsible manner may be liable to the beneficiaries for his or her actions.

As a result, it is best for the personal representative to keep the beneficiaries upto-date, and where possible, ask them for input. If the will is unclear on a particular matter, it is recommended that the personal representative not proceed without written agreement from the affected beneficiaries or a court order.

What happens if the testator leaves more debts than assets?

If there are more debts than assets, the estate is known as an insolvent estate. As personal representative, you must sell the assets the testator had and pay the debts.  The debts must be paid proportionately and without any preference or priority. The Estate Administration Act sets out rules for how this is to be done, called marshalling.

This means that funeral expenses, estate administration expenses, debts, and liabilities will be paid in a set order as outlined in the Act. The result may be that beneficiaries do not receive the full value of what they were promised in the will.

If the estate does not have enough money to pay all outstanding debts, it is very important for a personal representative to get advice from a lawyer so that you do not become personally liable for the debts.

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. November 2015.

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