Acting as the estate trustee of a loved one’s estate can be an onerous and thankless job. Most estate trustees will be quick to add that often times it’s not an honour but a burden. It comes with a great deal of responsibility, consumes much of your time and can expose you to liability. Where you are named as the estate trustee, it is important that you fully understand your exit strategy at the outset should you ever wish to resign from the role.
Unfortunately, resigning as the estate trustee isn’t as simple as one would hope. The procedure to resign depends on two factors: (1) the terms of the Will, and (2) what steps you have taken as estate trustee, if any.
The Will is always your starting point. The Will may set out the procedure to resign. Most Wills, however, fail to set out the method for the named estate trustee to resign. If that is the case, we have no choice but to examine the steps you have taken as the named estate trustee, if any.
Where you have not taken any steps to administer the estate, you can simply resign by completing and signing a Renunciation Form, delivering it to all interested parties at your earliest opportunity, and filing it with the court. The form can be found here.
If, however, you have started to act as estate trustee, the lines become blurred as to whether you can simply step down by signing the Renunciation Form or whether a court order is required. Where it is determined that you have acted as estate trustee to such an extent that you have “intermeddled” in the affairs of the estate, a court order is necessary for you to resign.
A close examination of the steps taken by you as the estate trustee is necessary to determine whether you have “intermeddled” in the affairs of the estate, thereby necessitating court intervention. More specifically, it is necessary to determine whether such steps taken by you showed an intention to accept the role of estate trustee. Steps that show an intention to accept the role of estate trustee include but are not limited to, applying for probate even if the Certificate of Appointment of Estate Trustee has not yet been issued, realizing the estate assets, paying some of the estate debts, and holding yourself out as the estate trustee. Where you have taken one or some of these steps or any other step that demonstrates an intention to accept the role of estate trustee, a court order is necessary to resign. Seeking a court order can be costly, time consuming, and the court may insist on you having a good reason for resigning. You will also be required to pass your accounts – that is, obtain court approval of your estate accounts – for the period in which you have acted before you can resign from the role. The Court may, however, dispense with this requirement where consent of all the beneficiaries has been obtained.
In light of the above, it is advisable for you to determine at the outset whether you want to accept or refuse the role of estate trustee before beginning to act. Otherwise, it can become a lot more difficult to resign if you have begun to act and may require a court order to do so.