When a person dies, carrying out their last wishes is a mark of respect, and it’s the executor who ensures that the deceased’s estate is settled in accordance with their instructions. Whether you’re thinking about choosing an executor for your own will or you’ve been asked to serve as an executor yourself, here’s an overview of the role and the duties involved.
The role of an executor (known as the “estate liquidator” in Quebec) is to administer a person’s estate after their death. You may also come across the term “estate representative”.
The executor follows the instructions set out in the will, such as distributing the deceased’s property to their beneficiaries. If a person dies without a will, their property will be distributed in accordance with the laws in effect in their place of residence.
Almost anyone can be an executor, provided that they have reached the age of majority and are of sound mind.
The testator (the person who wrote the will) may specify the person they want to act as their executor.
If there is no will, an executor will be appointed based on provincial or territorial law.
Pro tip: When planning your estate, choose an executor who lives in the same province as you to avoid unnecessary legal hassles. Don’t forget to talk it over with them beforehand to make sure they’re willing to take on the role.
Some estates can turn into a real headache. This can be the case if the deceased owned a business or held a lot of assets in another country. The situation can also be more complicated in the case of blended families.
If one of these situations applies, consider appointing a professional person (such as a lawyer or notary) to serve as your executor. Trust companies are the only companies that are authorized to act as executors. If you do opt for professional help, the estate may cover the expenses incurred.
You can name one or more executors in your will. Pro tip: If you’re going to choose more than one executor, opt for an odd number. Decisions have to be agreed by a majority, so this makes things easier.
It’s a good idea to specify alternate executors who can take over if your first choice is unable or unwilling to do the job.
Be sure to choose a person who is trustworthy and has good judgement. There are other factors to consider too. What is their relationship with the beneficiaries like? Will they have the time to fulfil the executor’s duties?
The executor has a number of legal obligations, including the duty to act in the best interest of the beneficiaries and to safeguard the deceased’s assets. They also have to respect the wishes expressed in the will. If a conflict of interest arises, the executor must put the interests of all the beneficiaries before their own.
There are a number of steps to follow, and the executor must be able to carry out all the tasks within the allotted timeframes.
The executor must:
Don’t hesitate to ask for help. There are a number of professionals (accountants, tax specialists, notaries, etc.) who can help you fulfil your duties as an executor.
Good to know: Depending on the province or territory, their fees are either paid by the estate or deducted from the executor’s compensation.
The law doesn’t impose a specific time limit for the executor to complete all their duties. However, if the parties involved (beneficiaries or creditors, for example) feel that the process is taking an unreasonably long time, they can make an application to the court. Another executor may then be appointed.
However, depending on the province or territory, there are still some deadlines for carrying out certain tasks. In Quebec, for example, there is a deadline for drawing up the inventory of the deceased’s assets and debts.
Given the amount of work involved, the will may provide for compensation to be paid to the executor. Pro tip: It’s always a good idea to specify this.
The beneficiaries or a court may also decide to compensate the executor.
Good to know: If the executor is a professional, they will charge their regular fees. In some provinces and territories, the law sets out how much they can charge.
Pro tip: The executor should always keep a record of their work so that they can justify their compensation if asked.
You can refuse to serve as an executor, whether the deceased asked you or not, and you don’t need to give reasons for refusing. However, you do need to notify any other executors, as well as the court or the alternate executor.
Good to know: Put your refusal in writing. It’s always a good idea to keep written evidence.
In some provinces, including Quebec, there’s an important exception to the right to refuse to serve as the executor, and that’s if you’re the sole heir. In that case, you are unable to refuse. However, you are allowed to get professional assistance with your estate settlement duties.
It’s usually possible to resign, even if you’ve already started. Depending on the province or territory, you may need permission from the court.
In addition, you’ll most likely need to provide accounts to show what you’ve done so far.
In this situation, the choice of executor will be governed by provincial or territorial law. In some cases, the beneficiaries can choose an executor by majority vote.
Pro tip: It’s always better to choose an executor in the will. If you don’t, everything quickly becomes more complicated.
The beneficiaries can take legal action in the event of gross negligence or fraud.
This is one reason why it’s very important for the executor to keep a copy of all documents (receipts, financial statements, etc.)
In addition, if the executor distributes assets before obtaining the necessary documents, they may be held liable for any amounts the deceased owes to the tax authorities.
Like all aspects of the estate process, being an executor is a serious business. Before you choose an executor or agree to serve as one, think carefully and ask us for help if you need it. You don’t have to do it all by yourself.
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