What is an Executor?
An Executor is the person named in a Will to carry out the directions contained in that Will. The Executor is responsible for settling the person’s affairs after death. The person’s estate (everything he or she owned) passes temporarily to the Executor. The Executor locates all of the person’s assets, pays the funeral costs, applies for probate (if necessary), pays the person’s debts, and taxes, and then distributes the remaining money and property according to the instructions in the Will.
The Executor is accountable to the beneficiaries. For example, the Executor must let the beneficiaries know if or when he or she is applying for probate and must keep records and give all beneficiaries a final statement of accounts. Being named as an Executor of an estate is a big undertaking requiring a considerable amount of time, energy, and careful attention to detail. An Executor can get help from friends and family members and also from a lawyer, an accountant, or other professionals if necessary. Nonetheless, the Executor remains the person who is legally responsible.
If you agree to be an Executor, you will be entrusted to handle the financial affairs of the deceased and you owe it to him or her to make sure you know what is required of you.
Who can be an Executor?
Any adult can be an Executor, but being the Executor of an estate can be a complex, difficult job. An Executor is responsible for such things as:
- the testator’s funeral arrangements (if applicable);
- obtaining probate of the Will (see question 2.9);
- managing the assets of the testator until they are sold or given to beneficiaries;
- paying the testator’s bills;
- preparing and submitting the testator’s taxes;
- distributing the testator’s estate as s/he requested;
- possibly establishing and maintaining trusts for children; and
- dealing with the legal and accounting matters relating to the estate.
Accordingly, an Executor should:
- be honest and trustworthy;
- be capable of doing the job (you do not need to be an expert, but you should at least be someone who does a good job of managing your own affairs); and
- have the time and willingness to do the job.
In addition, it is convenient if the Executor lives in the same city, or at least the same province, as the testator. This factor, however, should not overshadow the above three criteria. A person who is trustworthy, capable and willing is more suitable that someone who is not, even if s/he lives on the other side of the country.
A last consideration is the issue of the Executor’s interest in the testator’s estate. On the one hand, it can be beneficial if the Executor has a direct interest in the estate, as s/he would have more incentive to get things done in a timely fashion. On the other hand, one must be careful that one’s interest as a beneficiary does not overshadow one’s legal duties as an Executor.
How difficult is it to be an Executor?
Being named as an Executor of an estate can be a big undertaking requiring a considerable amount of time, energy, and careful attention to detail. It can also involve a significant amount of diplomacy.
The task can be fairly simple if you are an Executor of a small and simple estate, such as one with only a car, a house, some personal belongings, and a bank account.
On the other hand, the job of Executor may be considerably more complicated if:
- there are many beneficiaries and they are difficult to locate;
- the testator owned a business;
- the testator had a lot of investments and debts;
- the Will includes a trust (such as for minor or dependent children); or
- the Will is challenged by someone who feels left out of the Will.
What exactly are the duties of an Executor?
While the responsibilities of an Executor may vary as needed, the basic duties include:
- arranging the funeral and cremation and/or burial, if applicable;
- completing an inventory and a valuation of all assets and debts;
- gathering names and addresses of all beneficiaries and next-of-kin;
- cancelling subscriptions, accounts, and credit cards, redirecting mail and winding up all other personal matters;
- taking control of all assets, including the transfer of ownership registrations and the collection of any debts owed to the estate;
- applying for probate, if applicable;
- paying all the proven debts of the estate (The Executor may be held personally liable for these debts if a creditor remains unpaid after the distribution of the estate);
- filing tax returns for the testator and for the estate;
- selling assets as necessary and distributing the estate; and
- preparing and obtaining approval from the beneficiaries and/or the court for accounts showing assets, receipts, disbursements, and distribution of the estate.
I have just been asked to be an Executor. Do I have to agree?
If someone asks you to be an Executor and you don’t want to do the job, you can simply say no. No one can force you to take on this job.
It’s best to agree to act as Executor only if you feel you can do the job well and give it your time and attention. Be sure also to consider family dynamics.
I have just agreed to be someone’s Executor. What information should I get right now?
Here are some kinds of information you should consider requesting:
- the testator’s wishes regarding his or her funeral or memorial service and cremation and/or burial;
- additional details about the testator’s wishes, especially with respect to any issues that you or the testator suspect might become contentious;
- details of where the original Will and any codicils are kept and how to access them, as well as copies of all these documents;
- if appropriate, details of all that the testator owns and owes. For example, bank accounts, RRSPs or RRIFs, insurance, real estate, and pension benefits. (Note any items that are owned in joint tenancy or that name a specific beneficiary. These are dealt with outside the estate, so the Executor does not have to manage them.); and
- the names and contact details of any Attorney (in a Power of Attorney) and Agents (in a Personal Directive) named by the testator.
I have just agreed to be someone’s Executor. Is there anything I should ask the testator to do in order to make my job easier when the time comes?
You should consider asking the testator to:
- keep an up-to-date, detailed record of all that s/he owns and owes and let you know where this updated list can be found;
- talk to family members, the beneficiaries, or anyone who may be entitled to a share of the estate. Explain what his or her plans are, as this may prevent problems for you later; and
- keep you informed of any updates or changes to the Will and/or codicils.
I am receiving a gift under my wife’s Will. Can I still be her Executor?
Yes. An Executor can also be a beneficiary under the Will.
Can I get paid for being an Executor?
Often an Executor does not accept a fee. This is common if the Executor is a spouse, adult interdependent partner, family member, or close friend.
Any expenses the Executor has while settling the estate are paid for out of the estate. Examples of expenses are photocopying, postage, and long-distance phone calls. Sometimes the Will states an amount that is to be paid to the Executor as a fee. If it does, this is the maximum the Executor can receive.
If the Will does not list any fee, the Executor may apply to the court for “fair and reasonable” compensation. The Executor applies for the fee when he or she prepares the accounts for the beneficiaries to approve. If the beneficiaries do not agree with the proposed Executor fee, they can require the Executor to show his or her accounts to the court, who will set the fee. Even if the Executor is also a beneficiary, s/he may still apply for a fee, unless the Will says that this cannot happen.
Sometimes the Will leaves the Executor a special gift for doing the job. In such a case, s/he can get an Executor’s fee as well, but only if the Will says so. The Executor may prefer to take a gift rather than a fee because a fee is taxable, but a gift given in a Will is not.
If there is more than one Executor, the fee is split, but not necessarily equally. It depends on who does the most work.
I agreed to be an Executor, but now I have changed my mind. Can I get out of the duties to which I had previously agreed?
If the testator is still alive, you can change your mind at any time. Let the testator know as soon as possible so that s/he can ensure that the Will is properly changed.
You can also resign later, after the person has died. The law says, however, that in order to do so, you must apply to court for permission to renounce—or give up—the role.
You may not appoint someone else to act in your place, but if there is a co-Executor, he or she can take over. If there is no co-Executor, but the Will identifies an alternate Executor, then s/he may take your place. If there is no alternate named, someone will have to apply to the courts to become administrator of the estate. If you have any doubts about taking on the duties and responsibilities of an Executor, you should consider giving up your role before you assume control of the estate.
