Handling Probate When the Executor is an Ex-wife “Deemed” to Have Died Before the Deceased!

April 1, 2013 | Executors,Probate,Wills and Ex-spouses

Divorce complicates all kinds of things including how probate operates when you have named an ex-spouse as executor. Recently, I met with a mom and her adult children…the ex-husband and father had just passed away. The man’s Will predated the divorce. The Will named the mom (now the ex-wife) as the Executor and sole beneficiary with the children inheriting if she predeceased them. The family’s plan was to have mom, as Executor, obtain probate of the Will, then divide the net proceeds equally amongst her and the children. However there was a problem. Under Alberta law when people divorce, for the purpose of the Will the ex-spouse is “deemed” to have predeceased the Will maker and so cannot be the Executor (nor a beneficiary) unless a Will done post divorce says otherwise. There was no Will done after the divorce so it was as if the man had died without a Will (intestate is the legal jargon). His kids could not apply for probate but could apply for Administration of the Estate (under Alberta law they’d have a right to apply in order of birth, oldest to youngest). Each would eventually receive an equal share of their dad’s estate. That’s not what they wanted so we came up with a plan to work around this. Each child renounced in writing his or her right to be the Administrator and appointed their mom in their place. All the kids agreed that when it came time to distribute assets they would be split evenly among mom and kids.

This situation is a reminder that it’s important to revise your Will after a divorce. It’s also an example of how a bit of creativity can resolve a problem caused by external operation of the law to the mutual satisfaction of the parties involved.