Jessica Sullivan, Associate, DLA Piper
During the process of creating a will, the will-maker is often advised to choose their executor carefully. However, in certain cases, the will-maker does not take the further step of informing the executor that they have been named prior to the will-maker’s death.
While it may be an honour to be appointed, it might also come as a surprise to the executor. If you find yourself in this position, you might be wondering what exactly it means to be an executor, and where to start if you accept the role.
What does an executor do?
A person’s estate is comprised of all the assets the deceased owned at their death, as well as all of their liabilities. The executor is the person appointed by the will to deal with the estate and carry out the deceased’s instructions in the will.
The executor is responsible for: i) making funeral arrangements; ii) locating all of the property of the deceased; iii) paying the deceased’s debts, taxes and funeral costs (out of the deceased’s assets); and iv) safeguarding, investing and ultimately distributing what remains of the estate in accordance with the instructions in the will. Often the executor will also be appointed to administer any trusts which are set up under the will, adding to the complexity of your duties and the time commitment involved.
Acting as an executor can be a complex and onerous task, especially where: i) there are numerous beneficiaries named in the will; ii) the deceased’s net worth was high or their assets were complex; iii) the deceased was in significant debt; iv) the deceased owned or operated a business; v) the terms of the will create trusts for disabled or minor beneficiaries; or vi) a claim is made against the estate by a beneficiary, intestate heir or creditor.
Do I have to act if I’ve been named?
If you have been named as an executor, you are not required to act. Before you take any steps to deal with the estate, first consider whether you have the time and ability to accept the role. If you do not feel that you can accept the appointment for any reason, you have the option to renounce the executorship. This will allow a co-executor or alternate executor to take the role instead, if one has been named in the will. If there are no other executors named, another interested party can apply to the court to be appointed as the administrator of the estate.
However, if you have already taken steps to deal with the estate, called “intermeddling”, you are legally obligated to continue acting until you are discharged from your duties or removed by an order of the Court. While you are entitled to resign from the role of executor, it becomes more complicated once you have started to act.
I’ve chosen to act as executor, where do I begin?
If you choose to accept the role as executor, what follows is a general summary of the types of steps that you might need to take. This list is not intended to be exhaustive, and each estate will require different steps depending on the particular circumstances of the deceased, their estate and their beneficiaries and heirs.
Make funeral arrangements, review will and determine interested parties
1. Make funeral arrangements and obtain death certificates from the funeral home
2. Locate the deceased’s testamentary documents and determine if the will needs to be probated
3. Identify beneficiaries of the estate and next-of-kin, gathering information such as their names, addresses, ages and legal guardians
4. Determine if the deceased had a spouse, or anyone who may have been a common-law spouse
Identify, secure and collect assets
5. Search for, secure and make an inventory of all assets and liabilities of the estate
6. Secure the deceased’s home, consider changing locks, reduce or cancel utility services where applicable, redirect mail delivery, obtain appropriate insurance and implement security measures
7. Meet with the deceased’s financial institutions to notify them of the death, secure accounts and open an estate account
8. Confirm that all of the deceased’s assets are adequately insured
9. Obtain valuations of assets where appropriate
10. File claims for death benefits and life insurance
11. Attempt to access and review the deceased’s computer and other electronic assets
12. Cancel credit cards, subscriptions, licenses and memberships and obtain refunds if applicable
Obtain estate grant, pay debts and take custody of assets
13. Meet with an estate lawyer to represent the estate and obtain an estate grant if needed
14. Meet with the deceased’s accountant, or an accountant familiar with estates, to complete tax filings for the deceased and the estate
15. Transfer registered ownership of assets into name of estate
16. Consider whether real estate or other assets to be sold, liquidated or distributed in kind
17. Protect investments, collect interest and other funds due to estate
18. Prepare a detailed accounting of assets, receipts and disbursements of the administration
19. Obtain court or beneficiary approval of accounting and prepare to complete distribution according to terms of the will
If the assets of the estate require that you obtain a grant of probate, or you have reached a point in the administration where you are prepared to distribute the estate, consider seeking legal advice. Executor’s can be held personally liable for any mistakes that are made during the administration, and for any unpaid debts or taxes of the estate that remain after the estate has been distributed to beneficiaries. Exploring such risks and liabilities is beyond the scope of this article and should be reviewed by experienced legal counsel.
BC’s Make-a-Will Week is April 7-13, 2019. MAWW is a Ministry of Justice campaign that brings awareness to the importance of creating and maintaining an up-to-date will, which ensures that the people, charities and organizations you care about most receive the benefit of your estate.
In conjunction with the Leave a Legacy Vancouver program of the Canadian Association of Gift Planners, we are sharing tips and info throughout the week to help our readers learn more about wills and their pertinence in ensuring that final wishes are understood and executed. Visit our blog all week for key posts related to MAWW and will preparation.