The Role of Liquidators (Executors)

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What is a liquidator?

Liquidators are often referred to as "executors". However, the official term in Quebec law is "liquidator".

The liquidator is the person who is in charge of handling the estate of someone who dies. The official term for an estate in Quebec law is "succession".

The process that the liquidator undertakes is called "liquidating the succession" or "settling the succession". To do this, the liquidator must close accounts, file taxes, collect money owed, make an inventory of property and debts, distribute property to heirs, etc. To learn more about these steps, see our article Settling an Estate.

 

Who can be a liquidator?

The liquidator must be an adult who has not been placed under protective supervision (having an advisor or tutorship or curatorship).

A child under 18 who has married or been completely emancipated by a court decision can also, in theory, be a liquidator.

The notary who drew up the will can act as the liquidator, but only if the liquidation is done free of charge.

For a fee, many professionals (notaries, lawyers, accountants, etc.) offer liquidator services.

A savings company or trust company registered with the Autorité des marchés financiers (an agency that oversees financial markets and services) can also be a liquidator. Most financial institutions and investment companies fall into this category.

It is important to note that a liquidator can get help from these professionals and organizations, even when they are not named as liquidators.

 

How is a liquidator chosen?

The liquidator can be named in the will of the deceased. For example, "I name my daughter, Shannon, liquidator of my estate".

If the will does not name a liquidator or if the deceased did not make a will, the heirs automatically become the liquidators. In that case, the heirs can name the liquidator by a majority vote.

 

Can there be more than one liquidator?

Yes. A will can name several liquidators.

If there are several, the will usually says how decisions will be made. For example, one liquidator can be responsible for practical things like organizing a funeral, finding documents, etc. A second "professional liquidator" can take care of more difficult issues, such as property, debts and taxes. If the will does not specify the tasks to be done, who should do them, and the way decisions have to be made, the liquidators must act together unanimously.

If there is no will or the will does not name liquidators, the heirs become the liquidators. In this case, they share the responsibilities. Through a majority vote, the heirs can also name one person among them to act as the sole liquidator. They can also name any other person to fill the position (e.g. a notary, lawyer or accountant). If they disagree, they can go to court to have a liquidator named.

 

I have been named as a liquidator. Do I have to accept?

No. The person chosen by the deceased is not obliged to take on the role of liquidator. If you do not want be the liquidator, you must tell your co-liquidators or your replacement, if a replacement is named in the will. If you are the only liquidator and a replacement has not been named in the will, it is up to the heirs to name your replacement by a majority vote. If they disagree on a replacement, they can go to court to get a decision.

But there is an exception to these rules: if you are the only heir, you must accept the role of liquidator.

Keep in mind that you can still ask a notary or lawyer to handle the liquidation of the estate. This professional will consult you at each stage of the process and keep you informed of the status of the file.

 

What are the powers and responsibilities of a liquidator?

The powers of a liquidator are those described in the will. If nothing is specifically mentioned in the will, the liquidator must administer the property of the estate until it is transferred to the heirs. However, the liquidator cannot sell the property except in special situations. For example, the liquidator can sell property if all the heirs agree, if the property is too costly to keep, if it is losing value, or if it is perishable.

The law imposes responsibilities on liquidators to make sure they properly handle liquidations. Liquidators must act carefully, diligently, honestly, and faithfully (in the best interests of the beneficiaries of a succession and the wishes expressed in the will). They must not place themselves in conflicts of interest.

If the liquidator makes unreasonable decisions, does not administer the estate properly or hides certain information, any person with a sufficient interest in the estate (e.g. co-liquidators or a member of the family) can go before a court to have the liquidator replaced and to get compensation for harm suffered.

 

Can a liquidator delegate certain tasks?

Yes. A liquidator can delegate a specific task to another person. To do this, the liquidator must sign a document called a mandate authorizing that person to act in place of the liquidator. The liquidator can delegate tasks to relatives or professionals. For example, imagine that Christine cannot attend a meeting with the notary for the sale of her father's house. She can sign a mandate giving her spouse the power to represent her for the purposes of the sale.

Liquidators can also delegate all of their responsibilities. But in these cases, they can only delegate to their co-liquidators.

 

Can I resign from my role as liquidator?

Yes. You can resign from your role as liquidator at any stage of the liquidation. However, you cannot resign if you are the sole heir.

If there is a will, you must respect the resignation procedure set out in the will. If there is no will or the will does not say what the resignation procedure is, you must advise the heirs of your decision in writing.

No matter how the resignation occurs, you must report to the heirs about your management of the estate during the period you acted as a liquidator. Also, you must avoid resigning at a critical moment in the liquidation that could compromise the process.

Have you considered hiring a notary or lawyer? One of these legal professionals can help you with the liquidation process. Their professional fees can even be paid with money from the estate.

 

Does a liquidator have a right to be paid?

Yes. Liquidators have a right to be paid for the hours of work that they invest in the liquidation of an estate. However, liquidators who are also heirs cannot be paid unless the will says they can be paid or the other heirs agree. If the heirs cannot reach a decision, a court will decide.

Liquidators do not have to pay the costs of settling an estate out of their own pockets. Professional fees and other costs related to an estate (e.g., traveling expenses, fees to do a will search) must be reimbursed by the estate itself. However, these expenses must be reasonable and the liquidator cannot spend unreasonably.

 

My brother lives in another country. Can I still name him as liquidator?

Yes, but the choice could lead to some important tax consequences. According to our laws, it is the liquidator who has "control" of the property in the estate. So if the liquidator lives outside of the country, the provincial and federal tax authorities will consider it a "foreign estate"... and the taxes will be higher.

To reduce taxes, it is better to ensure that at least one of the liquidators lives in Canada and that the liquidation, for the most part, occurs in Canada. 

 

View a printer-friendly version of this article in pamphlet format: Estate Executors: Role and Responsibilities (PDF) (2 mb).

 

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.