Being Asked to Be an Executor: Difference between revisions

Latest revision as of 21:58, 21 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Hsia in March 2019.

An executor is the person named in a will to carry out the instructions in the will.

What the executor does

When the person who makes a will (the will-maker) dies, their property and possessions form their estate. The executor administers the estate by locating all of the will-maker’s property, paying any debts, the funeral costs and taxes, and then distributing the rest of the estate according to the instructions in the will.

Being an executor can be a demanding job

Acting as an executor can be relatively easy if the estate is simple; for example, if the estate consists of a car, a house, some personal belongings, and a bank account. But the job of executor can become challenging for many reasons.

Your job as an executor may be more difficult if:

there are many people named in the will to receive gifts of money or property,
the will-maker has a lot of assets or debts,
the will-maker owns a business,
the will includes a trust, or
the will is challenged by someone who feels they have not received a fair share.

You don’t have to act as executor

If someone asks you to be their executor and you don’t want to do the job, you can say no.

And you still have the option to say no once a will-maker has died, even if you said yes to being executor while they were alive. If you haven’t started dealing with any of the estate assets, you can decline — that is, renounce — your appointment as executor. You can do this by signing a form called a notice of renunciation. This form will need to be filed in court when someone applies for probate or administration.

“After my brother died, I found out that he had named me executor. I was honoured — but I’ll admit, it came as a surprise. I love my brother, but I didn’t want the job. I knew the whole process would be too difficult and stressful. For one thing, I’m 78 years old. And I live in a different province. So I signed a notice of renunciation form, and the alternate executor took over.”
– Brandon, Edmonton

If two people are named as co-executors, one of the co-executors can turn down the job. The co-executor who has decided not to act will still need to file the notice of renunciation form. Or one executor can apply for probate and the grant of probate can reserve the right of the others to apply later.

If you renounce, and a co-executor is not named in the will:

The alternate executor can take over. This is someone named in a will in case the executor is unable (or unwilling) to act.
If there is no alternate named in the will, someone will have to apply to court to become administrator. The process is similar to the process to probate the will. The administrator will need to deal with the estate in accordance with the will.

If you’ve already started dealing with estate assets, you are legally bound to continue

However, if you’ve already started dealing with any estate assets, you’re legally bound to continue until you are discharged of your duties by court order.

Examples of dealing with an asset include paying debts or changing the insurance on a house. Doing these things is considered intermeddling with the estate, and you must continue administering the estate until the court discharges you of your responsibility.

If you decide to act as executor, you can get help

It takes time, energy, and careful attention to detail to be an executor. Many executors do the work themselves. However, you can get help from friends and family members.

You can also choose to hire a lawyer or an accountant to help you, particularly if the estate is complex in any way. The fees they charge are paid out of the estate, as long as the fees are reasonable.

Many executors hire a lawyer to guide them through the probate process. Typically, executors hire a lawyer to handle any business interests left behind by the will-maker. Most executors hire an accountant to prepare the tax returns; some hire an accountant to prepare the estate accounts.

As executor, you’re legally responsible for the estate

As the executor, it’s your responsibility to make the decisions, watch over everything, and keep accurate records. Even if you get help from others, at the end of the day, you are legally responsible for the estate. If you don’t do the job properly, you could be personally liable.

There are some expenses and fees you can claim

The executor can pay themselves back from the estate for any expenses they paid for while administering the estate. Examples of out-of-pocket expenses are search fees, photocopying, and postage.

An executor can claim a fee for their time and effort. Sometimes the will says what the executor’s fee is. If the will doesn’t set out a fee, the executor may take up to:

5% of the gross value of the estate,
5% of the income of the estate (money earned by estate property after the will-maker dies, such as rent), and
0.4% per year, based on the average value of the estate under management, for a care and management fee.

The amount that the court will allow an executor to claim depends on how much work was involved and whether the executor paid for professional help or did it on their own.

An executor who is named as a beneficiary in the will may claim a fee in addition to what the will gives them as a gift, unless the will says otherwise. Sometimes the will leaves the executor a special gift (such as jewelry, money, or real estate) for doing the job of executor. In such a case, the executor can claim a fee as well, but only if the will says so. The executor may prefer to take a gift rather than a fee because a fee is taxable but a gift under the will is not.

If there is more than one executor, the fee is split, but not always equally — it depends on who does the most work.

Often an executor doesn’t accept a fee. This is common if the executor is a spouse, family member, or close friend of the will-maker.

“I was the executor of Mom’s will. She’d distributed most of her things before she died, so it was quite a simple job. I didn’t take a fee for being executor because it was for family and it didn’t take up too much of my time. In the end, there actually wasn’t enough money in Mom’s estate to cover all of the gifts she’d made.”
– Hayley, Comox Valley

There can be more than one executor

There may be more than one executor named in a will to act at the same time. If there is, the co-executors must act jointly. Neither is the “lead” executor. The co-executors have to agree on many things, from the selling price of the house to who will get the family photo albums.

If co-executors can’t agree, they can’t deal with the relevant asset. For example, if one executor wants to sell the house and the other disagrees, the house can’t be sold. If co-executors have serious disagreements, they’ll need to resolve the conflict by contacting a lawyer or going to court. If the administration of the estate stalls because the co-executors disagree, the beneficiaries may also go to court and seek removal of the executors for failing to act appropriately.

An executor’s role ends when the court formally discharges them

In general, it can take about one year to complete the work of executor for a straightforward estate. This is commonly referred to as the “executor’s year.”

That said, there is no strict time when the responsibilities of the executor are finished. The executor remains responsible for looking after the estate, even after the estate property has been distributed to the beneficiaries under the will. If assets or debts turn up years later, the executor will still be legally responsible for dealing with them.

An executor needs to go to court to pass their accounts and to be discharged as executor. Their role is only finished once this happens.

If you agree to being someone’s executor

If you agree to act as an executor, make sure you have a current copy of the will. Keep it in a safe place where you can find it easily. And make sure you know where the original will is kept. Ask the will-maker to give you a list of all of their assets and debts. Down the road, your job will be easier if this list is kept up to date.

Being an Executor © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence.

@@ Line 1: / Line 1: @@
-{{REVIEWEDPLS | reviewer = [[Helen Low|Helen Low, QC]]|date= January 2016}}{{Being an Executor TOC}}[[File:beinganexecutor-contents1.png|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.flickr.com</span>]]An '''executor''' is the person named in a [[Writing Your Will|'''will''']] to carry out the instructions contained in the will.
+{{REVIEWEDPLS | reviewer = [[Stephen Hsia|Stephen Hsia]]|date= March 2019}}{{Being an Executor TOC}}
+An '''executor''' is the person named in a '''will''' to carry out the instructions in the will.
-== What's involved in being an executor? ==
+== What the executor does ==
-When the person who made a will (the '''will-maker''') dies, their property and possessions form their '''estate'''. The executor administers the estate by locating all of the will-maker’s property, paying any debts, the funeral costs and taxes, and then distributing the rest of the estate according to the instructions in the will.
+[[File:Being an Executor - Contents1.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]When the person who makes a will (the '''will-maker''') dies, their property and possessions form their '''estate'''. The executor administers the estate by locating all of the will-maker’s property, paying any debts, the funeral costs and taxes, and then distributing the rest of the estate according to the instructions in the will.
-Being an executor takes time, energy and careful attention to detail. An executor can get help from friends and family members and also from professionals such as a lawyer or accountant. However, the executor is the person who is legally responsible. An executor makes the decisions, watches over everything, and needs to keep accurate records.
+== Being an executor can be a demanding job ==
+Acting as an executor can be relatively easy if the estate is simple; for example, if the estate consists of a car, a house, some personal belongings, and a bank account. But the job of executor can become challenging for many reasons.
-== How difficult is it to be an executor? ==
+Your job as an executor may be more difficult if:
-Acting as an executor can be relatively straightforward if the estate is modest; for example, if the estate consists of a car, a house, some personal belongings, and a bank account. But the job of executor can become challenging for many reasons, and you should only take on this responsibility knowing that the task may be time-consuming and stressful.
-Your job as an executor may be more difficult if:
 * there are many people named in the will to receive gifts of money or property,
-* the will-maker has extensive investments or debts,
+* the will-maker has a lot of '''assets''' or '''debts''',
 * the will-maker owns a business,
 * the will includes a '''trust''', or
-* the will is challenged by someone who feels left out of the will.
+* the will is challenged by someone who feels they have not received a fair share.
-== If someone asks you, do you have to act as their executor? ==
-If someone asks you to be their executor and you don’t want to do the job, you can say no. You can also decline or [[Ten Steps to Being an Executor#What if I don't want to act as executor?|'''renounce''' an appointment as executor]] after the person has died. However, if you have started dealing with any property of the estate, you are legally bound to continue, and you can only be relieved of being the executor by a court order after accounting for what you have done in the meantime.
-== Does an executor get paid? ==
-Any out-of-pocket expenses the executor has while administering the estate are paid for out of the estate. Examples of out-of-pocket expenses are search fees, photocopying, and postage.
-An executor can claim a fee for their time and effort. Sometimes the will states the executor’s fee. If the will does not set out any fee, the executor may take up to:
-* 5% of the gross value of the estate,
-* 5% of the income of the estate (money earned by estate property after the will-maker dies), and
-* .4% per year, based on the average value of the estate under management, for a care and management fee.
-The amount depends on how much work is involved and whether the executor hires professional help or does it all on their own.
-An executor who is named as a '''beneficiary''' under the will may claim a fee in addition to what the will gives the executor as a benefit, unless the will says that this cannot happen. Sometimes the will leaves the executor a special gift (such as jewelry, money, or real estate) for doing the job of executor. In such a case, the executor can claim a fee as well, but only if the will says so. The executor may prefer to take a gift rather than a fee because a fee is taxable but a gift under the will is not.
-If there is more than one executor, the fee is split, but not always equally. The division of the fees depends on who does the most work.
-Often an executor does not accept a fee. This is common if the executor is a spouse, family member, or close friend.
+== You don’t have to act as executor ==
-{{Ombox
+If someone asks you to be their executor and you don’t want to do the job, you can say no.
-| type  =
-| image = [[File:Headshot_-_Being_an_Executor_-_DRAFT_-_201-03-15_-_70px.jpg‎|link=]]
-| style     = width: {{{width|50%}}}; background:#ffffff; border:1px solid black; right
-| textstyle = font-size:100%
-| text      = <div>"I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t have any trouble except that she left specific amounts of money to the beneficiaries and there wasn’t enough money to go around. When I made my will, I put in percentages instead of actual amounts. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job."
-- Helen, Richmond</div>
-}}
-{{Ombox
+'''And you still have the option to say no once a will-maker has died''', even if you said yes to being executor while they were alive. If you haven’t started dealing with any of the estate assets, you can decline — that is, '''renounce''' — your appointment as executor. You can do this by signing a form called a notice of renunciation. This form will need to be filed in court when someone applies for '''probate''' or administration.
-| type  =
-| image = [[File:Headshot_-_Being_an_Executor_-_DRAFT_-_2017-03-15_-_100px.jpg|link=]]
-| style     = width: {{{width|50%}}}; background:#ffffff; border:1px solid black; right
-| textstyle = font-size:100%
-| text      = <div>"I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t have any trouble except that she left specific amounts of money to the beneficiaries and there wasn’t enough money to go around. When I made my will, I put in percentages instead of actual amounts. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job."
-- Helen, Richmond</div>
-}}
-{{Ombox
+{{PLSStorybox
-| type  =
+| image = [[File:Being_an_Executor_-_Brandon.png|link=]]
-| image = [[File:Headshot_-_Being_an_Executor_-_DRAFT_-_2017-03-15_-_125px.jpg|link=]]
+| text      = “After my brother died, I found out that he had named me executor. I was honoured — but I’ll admit, it came as a surprise. I love my brother, but I didn’t want the job. I knew the whole process would be too difficult and stressful. For one thing, I’m 78 years old. And I live in a different province. So I signed a notice of renunciation form, and the alternate executor took over.” <br/>– Brandon, Edmonton}}
-| style     = width: {{{width|50%}}}; background:#ffffff; border:1px solid black; right
-| textstyle = font-size:100%
-| text      = <div>"I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t have any trouble except that she left specific amounts of money to the beneficiaries and there wasn’t enough money to go around. When I made my will, I put in percentages instead of actual amounts. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job."
-- Helen, Richmond</div>
-}}
-{|
+'''If two people are named as co-executors''', one of the co-executors can turn down the job. The co-executor who has decided not to act will still need to file the notice of renunciation form. Or one executor can apply for probate and the '''grant of probate''' can reserve the right of the others to apply later.
-|-
-| [[File:Headshot_-_Being_an_Executor_-_DRAFT_-_201-03-15_-_70px.jpg‎|thumb|275px|left| link=| <span style="font-size:50%;">image via www.istock.com/</span>]] ||  "I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t have any trouble except that she left specific amounts of money to the beneficiaries and there wasn’t enough money to go around. When I made my will, I put in percentages instead of actual amounts. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job."
-- Helen, Richmond
-|}
+'''If you renounce, and a co-executor is not named in the will:'''
+* The alternate executor can take over. This is someone named in a will in case the executor is unable (or unwilling) to act.
+* If there is no alternate named in the will, someone will have to apply to court to become '''administrator'''. The process is similar to the process to probate the will. The administrator will need to deal with the estate in accordance with the will.
-{|
+=== If you’ve already started dealing with estate assets, you are legally bound to continue ===
-|-
+However, if you’ve already started dealing with any estate assets, you’re legally bound to continue until you are '''discharged''' of your duties by court order.
-| [[File:Headshot_-_Being_an_Executor_-_DRAFT_-_2017-03-15_-_100px.jpg  ‎|thumb|275px|left| link=| <span style="font-size:50%;">image via www.istock.com/</span>]] ||  "I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t have any trouble except that she left specific amounts of money to the beneficiaries and there wasn’t enough money to go around. When I made my will, I put in percentages instead of actual amounts. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job."
-- Helen, Richmond
-|}
-{|
+Examples of dealing with an asset include paying debts or changing the insurance on a house. Doing these things is considered '''intermeddling''' with the estate, and you must continue administering the estate until the court discharges you of your responsibility.
-|-
-| [[File:Headshot_-_Being_an_Executor_-_DRAFT_-_2017-03-15_-_125px.jpg ‎|thumb|275px|left| link=| <span style="font-size:50%;">- Helen, Richmond image via www.istock.com/</span>]] ||  "I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t have any trouble except that she left specific amounts of money to the beneficiaries and there wasn’t enough money to go around. When I made my will, I put in percentages instead of actual amounts. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job."
-|}
+== If you decide to act as executor, you can get help ==
+[[File:Being an Executor - Contents2.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]
+It takes time, energy, and careful attention to detail to be an executor. Many executors do the work themselves. However, you can get help from friends and family members.
+You can also choose to hire a lawyer or an accountant to help you, particularly if the estate is complex in any way. The fees they charge are paid out of the estate, as long as the fees are reasonable.
+Many executors hire a lawyer to guide them through the '''probate''' process. Typically, executors hire a lawyer to handle any '''business interests''' left behind by the will-maker. Most executors hire an accountant to prepare the tax returns; some hire an accountant to prepare the estate accounts.
+=== As executor, you’re legally responsible for the estate ===
+As the executor, it’s your responsibility to make the decisions, watch over everything, and keep accurate records. Even if you get help from others, at the end of the day, '''you are legally responsible for the estate'''. If you don’t do the job properly, you could be personally liable.
+== There are some expenses and fees you can claim ==
+The executor can pay themselves back from the estate for any expenses they paid for while administering the estate. Examples of out-of-pocket expenses are search fees, photocopying, and postage.
-{{PLSExamplebox
+'''An executor can claim a fee''' for their time and effort. Sometimes the will says what the executor’s fee is. If the will doesn’t set out a fee, the executor may take up to:
-| text =  I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t have any trouble except that she left specific amounts of money to the beneficiaries and there wasn’t enough money to go around. When I made my will, I put in percentages instead of actual amounts. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job.
+* 5% of the gross value of the estate,
-}}
+* 5% of the income of the estate (money earned by estate property after the will-maker dies, such as rent), and
+* 0.4% per year, based on the average value of the estate under management, for a care and management fee.
-== How does it work if more than one executor is appointed? ==
+The amount that the court will allow an executor to claim depends on how much work was involved and whether the executor paid for professional help or did it on their own.
-There may be more than one executor named in a will to act at the same time. If there is, the co-executors must act jointly. Neither is the "lead" executor or "main" executor. The co-executors have to agree on many things, from the selling price of the house to who is going to get the family photo albums.
+An executor who is named as a '''beneficiary''' in the will may claim a fee ''in addition'' to what the will gives them as a gift, unless the will says otherwise. Sometimes the will leaves the executor a special gift (such as jewelry, money, or real estate) for doing the job of executor. In such a case, the executor can claim a fee as well, but only if the will says so. The executor may prefer to take a gift rather than a fee because a fee is taxable but a gift under the will is not.
-If co-executors cannot agree, the administration of the estate can not move forward. For example, if one executor wants to sell the house and the other disagrees, there can be no sale. If co-executors have serious disagreements, they may need to contact a lawyer or go to court to resolve the conflict. If the administration of the estate cannot move forward because the co-executors disagree, the beneficiaries may also go to court and seek removal of the executors for failing to act appropriately.
+If there is more than one executor, the fee is split, but not always equally — it depends on who does the most work.
-== When does the responsibility of executor end? ==
+Often an executor doesn’t accept a fee. This is common if the executor is a spouse, family member, or close friend of the will-maker.
-In general, it can take about one year to complete the work of executor for a straightforward estate. This is commonly referred to as the “executor’s year.”
+{{PLSStorybox
+| image = [[File:Being_an_Executor_-_Hayley.png|link=]]
+| text      = “I was the executor of Mom’s will. She’d distributed most of her things before she died, so it was quite a simple job. I didn’t take a fee for being executor because it was for family and it didn’t take up too much of my time. In the end, there actually wasn’t enough money in Mom’s estate to cover all of the gifts she’d made.” <br/>– Hayley, Comox Valley}}
-That said, there is no set time when the responsibilities of the executor are finished. The executor remains responsible for looking after the estate, even after the estate property has been distributed to the beneficiaries under the will. If assets or debts turn up years later, the executor will still be legally responsible for dealing with them. The executor’s role is only finished when the court formally discharges the executor.
+== There can be more than one executor ==
+There may be more than one executor named in a will to act at the same time. If there is, the co-executors must act jointly. Neither is the “lead” executor. The co-executors have to agree on many things, from the selling price of the house to who will get the family photo albums.
-== Could you get help from professionals? ==
+If co-executors can’t agree, they can’t deal with the relevant asset. For example, if one executor wants to sell the house and the other disagrees, the house can’t be sold. If co-executors have serious disagreements, they’ll need to resolve the conflict by contacting a lawyer or going to court. If the administration of the estate stalls because the co-executors disagree, the beneficiaries may also go to court and seek removal of the executors for failing to act appropriately.
-Many executors do the work themselves, while others hire a lawyer or an accountant to do some or all of the work. Typically, executors hire a lawyer to handle any business interests left behind by the will-maker. Most executors hire an accountant to prepare the tax returns; some hire an accountant to prepare the estate accounts.
+== An executor’s role ends when the court formally discharges them ==
+[[File:Being an Executor - Contents3.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]In general, it can take about one year to complete the work of executor for a straightforward estate. This is commonly referred to as the “executor’s year.”
-Most estates where there is real estate or bank holdings require a legal procedure called '''[[Probating the Will|probate]]'''. Probate confirms that the will is legally valid and can be acted on. The probate process can be difficult and most executors hire a lawyer to prepare the necessary documents and to guide them through the probate procedure.
+That said, there is no strict time when the responsibilities of the executor are finished. The executor remains responsible for looking after the estate, even after the estate property has been distributed to the beneficiaries under the will. If assets or debts turn up years later, the executor will still be legally responsible for dealing with them.
-Professional fees are paid out of the estate, as long as they are reasonably incurred.
+An executor needs to go to court to pass their accounts and to be discharged as executor. Their role is only finished once this happens.
-== And if you agree to act as someone's executor? ==
+== If you agree to being someone’s executor ==
+If you agree to act as an executor, make sure you have a current copy of the will. Keep it in a safe place where you can find it easily. And make sure you know where the ''original'' will is kept. Ask the will-maker to give you a list of all of their assets and debts. Down the road, your job will be easier if this list is kept up to date.
-When you agree to act as an executor before a person dies, make sure you have a current copy of the will. Keep it in a safe place where you can find it easily. Also make sure you know where the original will is kept.
 {{Being an Executor Navbox}}

Being an Executor
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Contents
Being Asked to Be an Executor Ten Steps to Being an Executor Probating the Will Where to Get Help Glossary About ‎
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