An executor is the person named in your will to look after the administration of your estate according to the stipulations in your will. Administering your estate involves consolidating your estate; determining its value; paying your debts, taxes, and funeral expenses; and distributing your estate according to the directions you have specified in your will. In case the person you choose as executor is unable to act on your behalf, you should name an alternate in your will.
It is preferable that you choose an executor who lives in the province in which you reside; otherwise he/she may have to post a bond before assuming his/her duties as executor. If at all possible, the executor should not be a resident of a different country.
Most estates can be properly administered by a layperson with the assistance of an attorney. Most people appoint a spouse, one or more of their adult children, a relative, a friend or solicitor as their executor. If your estate is complicated, or if you foresee the potential for disputes among your heirs or a conflict of interest arising for your executor, it may be prudent to appoint someone who will be able to deal with your estate “at arms' length.” In cases where an estate is large or complicated, the help of a trust company may be required to properly administer the estate but be aware the fees can be very significant.
Duties of your executor
One of the executor's first duties will be to see to the funeral arrangements. Since your will may not be read until after the funeral, it is important that you document your funeral instructions elsewhere. I asked Avideh Musgrave, a lawyer at Ritchie Mill Law Office to help me put together a list of executor's duties concerning the assets and property of an estate. Executors will be required to:
- Locate the will and ensure that it is your latest or most recent copy;
- Determine the names of those beneficially entitled to the estate property and notify them of their interests;
- Advise any joint tenancy beneficiaries of the death of the deceased;
- Arrange with a bank, trust company or other financial institution for a list of the contents of a safety deposit box;
- Obtain copies of the death certificate which will be required in order to perform many executorial duties;
- Make an inventory of all the assets and liabilities and take control of any assets that are in danger of being dissipated;
- Arrange monetary assistance for the family (if necessary) while the estate is being settled;
- Apply to the surrogate court for probate of the will;
- Retaining a lawyer to advise on the administration of the estate, to apply for a grant from the court or to bring any matter before the court;
- Determine whether they need to advertise for claimants, checking all claims and making payments as funds become available;
- Apply for any pension insurance benefits payable to the estate or directly to the beneficiaries;
- Liquidate the estate if necessary to carry out the instructions in the will and pay all taxes and debts owing;
- Distribute the estate according to the will;
- Obtain releases from the beneficiaries stating that they will make no further claims upon the estate;
- Prepare accounts of the estate (if required) and present them to the surrogate court for approval.
It is important to note that the executor is authorized to act as the legal representative of the estate. Thus the executor can be held personally liable for losses suffered by the estate that result from his/her negligence or failure to carry out his/her duties. It is therefore imperative, that the executor keeps detailed records of all transactions made in the administering of the estate and get the advice of a lawyer to make sure they have crossed their t's and dotted their i's.
We'll finish with a few important and practical tips with regards to your executor:
- Make sure the executor knows where your will is kept.
- Keep your will and all-important financial documents in a safe and fireproof location.
- Make sure the executor knows where you keep important financial papers.
- Review your will every two years to make sure it reflects your wishes. The will should also be updated after such events as births, deaths, marriage, and divorce. It is important to note that your will becomes invalid if you get married, however remains valid if you get divorced. Advise your executor of any important changes.
- If there are any major changes in your life, review your will to make sure it still reflects your wishes.
Jim Yih is the author of Smart Tips for Estate Planning. For more information on executors and estate planning check out this book.
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