You have been appointed as an executor under a relative’s or friend’s Will and that relation or friend has just passed away. If the Will Maker, while he or she was living, asked you if you would act as executor, which is often the case, and you agreed to do so, you may feel you have a moral obligation to act as executor. If you do not feel obliged to act as executor, however, your first consideration is whether or not you want to take on the role. You do not have to so long as you have not “intermeddled” in the administration of the estate. There are some steps that can be taken that do not constitute intermeddling, such as the payment of the deceased’s funeral expenses, but you are well advised to decide whether you want to accept your appointment as executor before taking any steps to administer the estate.
In deciding whether or not to accept the role of executor, you must understand that your duties will include: (1) seeking a grant of probate from the Supreme Court of British Columbia for the purpose of proving the last Will and your appointment as executor; (2) ascertaining and taking possession or other control of the deceased’s assets; (3) paying the deceased’s just debts and any ongoing liabilities of the estate, including taxes; (4) distributing the net estate in accordance with the gifting set out in the Will; and (5) keeping proper estate accounts and being ready to either account to the beneficiaries to their satisfaction or to pass the accounts before a registrar of the Supreme Court of British Columbia.
These duties may be fulfilled by you in a smooth manner where the debts and liabilities are readily ascertainable, there are no difficult beneficiaries, no one is disputing the validity of the Will or your appointment or ability to perform the role of executor and there is no wills variation action brought seeking to vary the bequests made in the Will. But such issues often arise and your role can become much more complex and difficult if you chose to take it on.
By way of example, the Will Maker may have held real property or bank accounts in joint ownership with another person. At least one of the reasons for the joint ownership may have been to gift the asset in question to the co-owner by way of the right of survivorship outside of the Will Maker’s estate. On the other hand, the reason for the joint ownership of land may have been to avoid probate fees on the value of that land and the surviving co-owner has agreed with the deceased Will Maker that he or she will hold the beneficial ownership of that land for the estate, the ownership or sale proceeds to be distributed under the Will. Joint ownership of a bank account may have been put in place solely so that an adult child or caregiver could assist the Will Maker with payment of bills and banking. In your role as executor; you may have to investigate the circumstances of such joint ownerships and may even have to bring legal proceedings on behalf of the estate to seek to recover assets.
There are many other pitfalls and complexities that can arise in the administration of the estates for executors. These include potential personal liability to unsatisfied creditors of the estate or to the Canada Revenue Agency for unpaid taxes of the Will Maker or the estate. These problems can arise where the executor does not properly give notice to creditors of the Will Maker’s death or does not obtain a tax Clearance Certificate from the CRA before distributing the estate to the beneficiaries.
The point to be taken from this short article is that an executor’s job may be quite straightforward, but that there are many reasons why and circumstances where the job will be complex, perhaps be extremely frustrating and could even involve personal liability for estate debts. You may want to seek professional assistance from a lawyer and/or accountant in appropriate circumstances to help see you through the complexities and difficulties. Then again, you may want to exercise your right to decline to act as executor.