The most important decision when drafting a will is who to name as the executor. This is the person responsible for ensuring the testator’s wishes are followed and the person (s) in control of the process known as probate.
A will can have multiple executors with a maximum of four. Sometimes, those executors are named jointly, as may be the case when someone has multiple children who are named together. It is also common to name replacement executors, for example when someone names their spouse as the primary executor, failing whom one of their siblings might take on the role.
The first step for an executor when someone dies is to obtain the original Will of the deceased. (a copy is not sufficient) This document may be stored with a legal firm, in a bank safety deposit box, or in a person’s home. It is prudent for both a testator and their executor (s) to know exactly where the original Will is kept.
Once an executor locates the will, they must then make a list of the assets and
liabilities of the deceased and apply for a grant of probate. Probate provides
authority for them to deal with the estate but may not always be necessary. If the
assets include property, business and large investments then inevitably a grant of probate will be required before any distribution of assets.
If someone dies without a will, otherwise known as dying intestate, it is a
misconception that the government keeps their estate. It is distributed according to the applicable provincial laws of intestacy with a pre-determined distribution
schedule to their surviving next of kin. A family member or someone else can apply to be appointed as the administrator of the estate to carry out the typical duties of an executor.
Once an executor has authority to settle the estate, they can begin notifying
financial institutions, selling assets, and paying debts, taxes, and other expenses.
An executor’s job is typically complete when they distribute assets to the beneficiaries, which may include themselves, and obtain releases from the beneficiaries.
The role of an executor can be complicated and involve tax, legal and other financial decisions. It may also be contentious depending upon family dynamics. In the case of minor or disabled beneficiaries, it is possible that assets will be held in trust for a certain amount of time, until the beneficiary attains a certain age, or even for the remainder of that beneficiary’s life. As a result, the age of the executor, especially relative to the age of the person writing the will, is also important to consider.
An executor is not required to act. In fact, they can turn down the role or even step
down from their role after they have already begun. This is a prime reason a testator should make sure they ask their intended executor if they are willing to be named, but also include at least one replacement executor in their will.
Executors are not liable for the debts of the deceased. However, they may face
personal liability for errors or omissions they make when settling an estate.
An executor can also seek out legal assistance if they need help. An agent for the
executor can assist with the duties related to the estate settlement process. As a
result, an executor does not necessarily need to do everything on their own but is
responsible for overseeing the estate.
When a testator writes their will, they often name a family member or friend, but
they can name a professional executor right from the start, like a legal company.
This may be a relief to their family, but it does come with a cost and must be fully
investigated.
The probate process may take anywhere from a few months to one year to settle. Although it may not be common for it to take more than a year, if the estate includes liquid assets like a business, complexity like foreign assets, or if there is family discord, the process can certainly take longer.
Testators writing a will should consider whether the executors they are naming are the right people. It can be a big job, but somebody has to do it….
Contact us today to arrange a free consultation in the comfort of your own home, where we can guide you through the process of choosing your executor(s).
コメント