January 23, 2017

Save Needless Worry! Get The Grant – Probate and Executor Liability

Save needless worry! Get the Grant of Probate.

Personal Representatives (Executors) or Trustees who take steps before obtaining a Grant of Probate (or Grant of Administration) from the Court are taking on serious risks of personal liability.  They risk becoming seen as what is legally termed a “de facto trustees (trustee de son tort).”  Effectively, that means operating without confirmed authority of a Trustee (or Personal Representative / Executor as a specific type of trustee), when in fact that authority may not be completely sound until it is proven to the Court and the Court issues a Grant to you, to confirm that authority.

And, it is important to note, liability is strict in a case where someone takes on the role without obtaining the Grant.  In comparison, as a practical and legal matter there are more defences to a Personal Representative’s activities if a Grant issued beforehand.

It is important to note, as well, that the job (if taken on) is onerous.  Precise accounts of financial matters are required: See Manitoba court’s decision in re: Bereskin Estate: These principles may be applied to a Power of Attorney document as well.

Speak with one of our Estate lawyers if you have questions on this, or if you wish to apply for a Grant of Probate (or other Grant) to confirm your authority to act under a Will for an estate.  We can also advise you on your various legal obligations in acting as a Personal Representative (Executor) or Trustee.