Who Is The Executor Of A Will?
The executor of your estate (sometimes called a trustee or personal representative) is a person you name to carry out your wishes upon your death.
It’s wise, of course, to choose someone who’s not only responsible and organized but also diplomatic and congenial. Disputes among beneficiaries are some of the most common challenges of asset distribution, and you’ll want an executor who can diffuse conflict, not cause it.
You can name almost anyone you trust to become the executor of your Will as part of your estate planning process. You can’t name minors, however, or people with disabilities whose impairments wouldn’t allow them to carry out the duties of an executor. Although not legally required, it’s recommended to name a Canadian resident (even better if they live in the same province as you) to be your executor.
The characteristics of a solid executor are:
When writing your Will, it’s wise to let your executor know that you’ve chosen them for this responsibility. It’s also a good idea to review your wishes with them, in detail, and make sure they understand what they will be responsible for as your executor.
Make sure your executor understands the full scope of their responsibilities, as they are ultimately allowed to refuse the role after your death.
Can I name more than one person as executor of my Will?
Yes, you can name multiple people to act together as executors of your Will.
But is it a good idea?
Well, that depends. If you are naming two people to act together they will need to agree on all decisions. If that’s the case, you’ll want to make sure you name two people that get along and will be able to work together in administering your estate. If you’re thinking about naming more than two you should know that it can become difficult for your executors to all act together. You can do it if you wish, but be cautious. More is not always merrier.
Where it is common to see someone name multiple executors is when they are naming a spouse and want to name a second person to help with this difficult task (not to mention it’s already an extremely stressful time for a spouse.) Another instance where it happens is when someone names all of their adult children to act together.
Keep in mind, however, that this structure introduces complexity to the management of your estate. Unless you specify otherwise, all executors must agree on how to interpret your Will. This can cause delays in distributing estate assets to beneficiaries … which may cause disputes.
Estate lawyers will generally recommend appointing one or more backup executors in case your chosen executor(s) can’t or won’t assume the responsibility.
What are the powers of executors for a Will?
Your executor has a number of main responsibilities.
- One of their first responsibilities will be to carry out any wishes you have regarding funeral, burial, cremation, etc.
- The executor will also need to contact any companies you have accounts with (e.g. utilities, credit cards) to transfer or close those accounts.
- They will also need to determine all of the assets you owned at the time of death (e.g. bank accounts, real estate, life insurance), as well as your debts.
- They will need to make arrangements to pay your debts and file/pay your taxes. Your remaining assets will be distributed in accordance with the instructions in your Will. This may include having the executor hold assets “in trust” for young children.
Although it’s not always the case, it’s common for the executor of your estate to also act as trustee of any trusts created under your Will. The ongoing management of these trusts can be a big job that spans a long time.
There are a number of different types of trusts that can be created in a Will but the most common are the following:
- Spousal Trusts;
- Trusts for children and issue;
- Trusts for minors;
- Henson Trusts (for beneficiaries that are disabled and receiving government benefits).
Here is a full ist of roles and responsibilities of an executor:
Can the executor change the Will?
No, an executor doesn’t have the authority to change a Will.
While they can interpret the Will to the best of their abilities, an executor would need to apply for a variation of trust to outright change it.
If it’s obvious the wishes as expressed in the Will are outdated, the court does grant a revision in some rare cases. In Canada, Wills may be corrected because of the following needs:
- Rectification: correcting mistakes that are obvious in the Will
- Interpretation: clarifying muddy wording within the Will
- Variation: redistributing property differently than what was set out in the Will
If all beneficiaries and the executor agree that the Will should be revised due to one of these circumstances, they can apply for a variation of trust. But this decision is complicated and can’t be made by the executor alone.
- Hand over their responsibilities to someone else (unless the Will states they can)
- Make a profit from their role as executor
- Put their own interests before the estate’s
- Make bad investment decisions with assets
What is the first thing an executor should do?
One of the first duties of an executor may also be the most boring: gaining a solid grasp on the complete financial value of the estate.
Executors gather a ton of paperwork:
- All existing bank account records
- Tax returns
- Investment portfolios
- Deeds and other property documents
- Records of debt
- Life insurance policies
- Pension plans
- Company share ownership records
- When there is any confusion or dispute over the interpretation of the Will, the executor will need to produce these
- records for loved ones––otherwise their role could be contested.
When the estate’s financial value has been assessed, the executor must file a deceased tax return to the Canada Revenue Agency. Any taxes owing are taken from the estate before it’s distributed to beneficiaries.
Executors have a multitude of other tasks to complete over the course of the following weeks and months after someone dies. This often takes around a year but can take even more time if the estate is complicated.
Click here to download an Executor Checklist of some common duties.
Can an executor cheat beneficiaries?
Executors can try to cheat beneficiaries … but their obligation to the estate as enforced by law makes it difficult for them to do so. Heirs have some recourse if they feel an executor isn’t fulfilling their duties.
First, executors need to be prepared to show receipts. If you’re a beneficiary who doesn’t feel that the executor is communicating how they are handling assets, you can request to review documents with a lawyer and figure out next steps.
Notice of probate court application
Probate is the process of reviewing and validating a Will before an executor can assume their responsibilities. While not every Will needs to pass through probate, it’s highly likely that an executor will need to apply for it.
As a beneficiary, you’ll receive notice that the probate application has been submitted. If you haven’t received notice, you have a right to request it.
Review of the Will
Beneficiaries may request to review some (or all) of the Will, depending on how much of it applies to them.
After a Will has passed through the probate court, it becomes a public document––meaning anyone who applies may see it after paying a fee.
When beneficiaries receive the section of the Will that applies to their assets, they can hire their own lawyer to help interpret its contents––which may help clarify whether an executor isn’t being true to the estate.
Account of the estate
It’s normal for beneficiaries to have questions about how an estate is being managed, and the executor is obligated to show documentation of how they’ve been handling assets.
When beneficiaries feel like an executor may be hiding something, they can request to see invoices, receipts, deeds, etc. If the executor refuses to provide documents, loved ones may request a court-supervised review of the accounts.
Can an executor be replaced?
If a beneficiary has reviewed all the documentation they are permitted to review and they’re still getting nowhere, they can request to remove the executor.
But taking legal action is a hassle, and beneficiaries should assess whether or not it’s worth it before they proceed. We recommend asking the following questions when in a dispute:
- Have I done everything I can to reason with the executor without legal action?
- Have I adequately documented my communication with the executor?
- Do I have indisputable evidence that the executor is putting their interests ahead of the estate’s?
- Is my inheritance large enough to make up for the lawyer’s fees I might incur if I take the executor to court?
- Are other family members who are also beneficiaries willing to help me take legal action against the executor?
Keep in mind that the court’s primary responsibility is to the person who died who wrote the Will (the testator). If the executor is interpreting the Will correctly and acting in the best interest of the estate, the court will likely not remove them.
But there are some reasons for the removal of an executor. If you’re a beneficiary who needs evidence that an estate is being mismanaged, here’s where you should focus your efforts:
- You can prove that they are mismanaging assets
- You have evidence that they have received unlawful compensation for their role
- You have a paper trail that shows they are refusing to provide an accounting of estate assets
- You know they have committed a crime
- They have filed for bankruptcy
- You have it on record that they are refusing to carry out the terms of the Will
- You’ve noticed that they have become incapacitated in some way, and you can prove it
If you know you can remove an executor, see if you can take legal action with other family members or close friends, as the court considers how close heirs were to the deceased when they are making their decision. Also, lawyers can be expensive––you may want to seek help with the costs associated with legal action.