Who Can Be Executor Of A Will?

Executor. Estate trustee. Personal representative. These are all names for people who can carry out your wishes after you die.

When you die, you need someone to administer your estate on your behalf. An executor is someone you’ve appointed to carry out your wishes as expressed in your Will. While this person is often a family member, your executor can also be a close friend or even a professional you’ve entrusted to administer the estate after you die.

But what’s the best way to choose an executor? Are there any limitations to choosing someone who can represent you?

Keep reading to find out:

  • Whom you can’t name as executor to your Will
  • Who can qualify as a potential executor
  • How to choose an executor
  • What it means to appoint a foreign executor
  • Whether or not you can name more than one person as co-executors
  • The difference between an executor and a trustee
  • A list of executor responsibilities
  • When an executor would be removed

Who can’t be an executor to your Will

First, let’s start with who you can’t name as executor to your Will:

  • Minors under the age of majority
  • People with disabilities who are unable to carry out executor responsibilities due to their disability
  • Animals––we shouldn’t have to say it, but we’re being careful

Who qualifies as a potential executor?

An executor is someone you’ve appointed in your Will to administer your estate following your death. Here’s who you can choose:

  • Spouses
  • Adult children
  • Parents
  • Another family member
  • Friends or acquaintances
  • Neighbours
  • Professional agencies––especially useful for complex Wills

Keep in mind that people who are beneficiaries––someone who receives assets from your estate––can also be executors. An executor may also witness your Will but only if they are not a beneficiary. And even then, if you can find someone else to do it, it’s probably a good idea.

Choosing an executor to administer the estate

When you’re choosing an executor, the most important thing to consider is trust.

Executors carry a large burden of responsibility. Depending on its complexity, the administration of your estate can take many months, even several years. So you need someone who’s capable of carrying out many administrative tasks over a long period of time.

Here are some characteristics you should prioritize when you’re choosing an executor to administer the estate:

  • Trustworthy
  • Organized
  • Diplomatic
  • Communicative
  • Calm
  • Great time management skills

When writing your Will, start by asking your chosen executor whether they’re okay with taking on the responsibility. Be transparent about the tasks they would be assuming. Get a full checklist of executor responsibilities here.

If your chosen executor agrees, make sure to review your wishes with them, in detail. In Canada, it’s recommended that your executor be a Canadian resident for simple acceptance by probate court. If for any reason you can’t or don’t want to appoint a Canadian citizen as executor, you’ll need to be aware of some complications.

What it means to appoint a foreign executor over a family member

Non-Canadian residents are legally allowed to be executors, but they’ll need to jump through some extra hoops to complete their duties and administer your estate. Here’s what you’ll need to know:

The executor will need to post a bond

When your executor is applying for probate––one of their first tasks––they’ll need to post an administration bond that’s of equal value to the estate. Depending on the size of the estate, this amount may be large and cost prohibitive.

The executor always has the option to bring forward a motion to ask the court to waive the bond, but they’ll be required to pay any legal fees associated with the request.

The estate will face extra tax implications

When the executor isn’t a resident of Canada, the entire estate may be classified as foreign. That means the estate could lose out on preferential Canadian capital gains and dividend tax treatments. There’s also a risk that the estate would be subject to foreign tax laws within the executor’s country.

Our alternative recommendation

If you can’t find a Canadian resident to act as executor to your Will, you can consider appointing a professional trust company instead. You’ll avoid many of the complications of appointing a foreign trustee, and you’ll have a local point person who can distribute assets to beneficiaries in a timely manner. But, there are costs associated with appointing a trust company, so it’s important to understand what those are before going in that direction.

Can I name more than one person as executor of my Will?

Yes, you can name more than one person to be co-executors of your Will.

But is it a good idea? It depends. It’s certainly simpler to name one primary executor and one back up, but as the person writing the Will, the decision is up to you.

If you’re feeling apprehensive about handing over all that responsibility to one person, you’re allowed to appoint more than one person. It’s not uncommon for parents to name all their children as co-executors to avoid favouritism, for example.

Keep in mind, however, that this structure introduces complexity to the management of your estate because all executors must agree on how to interpret your Will (unless your Will stipulates that decisions don’t need to be unanimous). Even then, things can be complicated when one executor or more disagrees on what to do. This may cause disputes, especially between family members, or delays in asset distribution.

Is an executor the same as a trustee?

While an executor can also be a trustee, they’re not necessarily the same thing.

While executors handle the management of the estate as a whole, they don’t handle “testamentary trusts”: assets that are distributed to beneficiaries at a later date or on a schedule.

Reasons to establish a trust

  • Minors can’t receive assets until they reach a certain age––which can be determined by the testator
  • “Henson trusts” can be created for disabled beneficiaries who rely on government assistance and might lose benefits if they receive a lump sum payment
  • A spouse or other beneficiary who can’t manage their assets for whatever reason

It is very common to have the same person act as executor and estate trustee.

What does an executor do?

Now that we’ve discussed who can or can’t be an executor, you may be wondering: What exactly does an executor do?

Well, we can tell you that an executor’s first duties aren’t exactly a great time. The first thing they’ll need to do is assess the complete financial value of the estate, including all real estate, cash, gifts, etc.

An executor must collect paperwork

To fulfill this onerous task, executors gather a lot of paperwork.

  • All bank account records
  • Tax returns
  • Investment portfolios
  • Deeds and other property documents
  • Records of debt
  • Life insurance policies
  • Pension plans
  • Company share ownership records
  • Digital assets, including your email address account and social media accounts

When this process is complete, the executor should have a solid grasp on how to carry out the testator’s wishes. That’s when they’ll start to clear up any confusion or disputes over the interpretation of the Will between beneficiaries, which requires transparent documentation––and stellar organizational skills.

An executor has many important responsibilities

The executor will need to file tax returns, pay taxes, and settle any debts before anything can be distributed to beneficiaries. The executor has a lot of responsibility, which can include:

  • Interpreting the Will
  • Distributing assets to beneficiaries
  • Keeping beneficiaries informed on the progress
  • Hiring professional advisors to help with the administration of the estate

Can an executor be replaced?

Let’s say you’ve been named the executor to someone’s Will, but one of the beneficiaries doesn’t like that you’ve been chosen. Can they replace you with themselves or someone else?

The answer is maybe. Under some circumstances, beneficiaries can have some rights reserved to take legal action to remove an executor.

Reasons to remove an executor

Keep in mind that the court’s primary legal responsibility is to the person who died who wrote the Will. 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 valid reasons for the removal of an executor:

  • The executor may be mismanaging the estate or refusing to carry out the terms of the Will
  • There’s evidence that the executor may have received unlawful compensation for their role
  • There’s a paper trail that shows the executor is refusing to provide an accounting of estate assets
  • The executor has committed a crime
  • The executor has filed for bankruptcy
  • The executor has become incapacitated in some way that can be proven

If you know you can remove an executor, take legal action with other family members or close friends. When considering executor removal, the court considers how close heirs were to the deceased when making their decision.

Lawyers can also just be expensive––and you’ll probably want some help with the legal costs.

Choosing an executor can mean the difference between a straightforward estate administration process that delivers assets to beneficiaries in a timely way or a complex nightmare that can drag on for years. Make sure to choose an executor you would trust with your life––so that they carry out your wishes effectively in death.