Appointing an Executor
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Helen Low, QC in January 2016.|
Your executor is the person you name to carry out the instructions in your will. They are responsible for settling your affairs.
What are the executor's responsibilities?
The role of executor usually involves paying any outstanding debts, applying for the Canada Pension Plan death benefit, selling some assets, preparing the final tax return, and distributing the estate. How much time this takes depends on how complicated your affairs are.
Your executor may need to probate the will. Probate is a legal procedure that confirms the will is legally valid. In the probate process, the executor submits special forms and the will to court. If everything is in order, the court issues a grant of probate.
Some estates that involve only a small amount of money (under $25,000) may not need to go through probate. It is up to the third parties who hold your assets whether they will give the executor those assets without probate.
Who should you choose to be your executor?
An executor should be someone you trust and who has the ability to carry out the instructions in your will. It’s best if he or she is familiar with your situation and your wishes. An executor can be one of your beneficiaries. Most people ask a family member or close friend to be their executor.
You can also appoint a lawyer, a notary public, or a private trust company as executor. The Public Guardian and Trustee may agree to be appointed executor in some circumstances.
In choosing an executor, keep in mind that:
- Your executor should be someone who will likely outlive you.
- Your executor can be someone who does not live in the province, but all procedures to settle the estate will be done in British Columbia. It is more convenient to get documents signed and tasks done by an executor who lives close by.
- Although not recommended, you can appoint someone under age 19 as executor. However, if he or she has not reached age 19 on your death, probate may be delayed.
- It helps if the person you appoint is organized and a good communicator.
- Most importantly, the person must be willing to take on the duties of executor.
It is very important to name at least one alternate or backup executor in your will. If the executor is unable or unwilling to act, the alternate can take over.
Can more than one person act as executor?
Yes, you can appoint two or more people to act as your executors. It is important to be aware that if more than one executor is named, the co-executors must act jointly. Neither of them is the "lead" executor or "main" executor. They’ll have to agree on many things, from the selling price of the house to who is going to get the family photo albums.
If one executor dies, the other one can act alone.
Sometimes people choose three executors so that if there are disagreements, the executors can vote and the majority will decide. However, you need to say in the will that this is what you want; otherwise all decisions must be unanimous. You also must say that the executor who doesn’t agree with the other two will still go along with the decision and sign any necessary documents. This is called a majority rule clause.
If you appoint more than one executor, consider if they will be able to work together. You should discuss your wishes with both of them. It’s best if you can do this with them together.
How can you make the job easier for your executor?
First, ask the person you have in mind if he or she is willing to be your executor. Once they have agreed, you can make the job easier for them if you:
- Discuss your wishes with the executor, including burial and cremation.
- Register your will, and tell your executor where the original will is kept. It is a good idea to keep it somewhere where your executor can access it.
- Keep an up-to-date, detailed record of all that you own and all that you owe. For example, record your bank accounts, RRSPs or RRIFs, insurance policies, real estate, and pension benefits. Note any items which are owned in joint tenancy or which name a specific beneficiary. These are dealt with outside the estate, so the executor does not have to manage them.
- Explain your plans to family members, the beneficiaries, or anyone who may be entitled to a share of the estate. Talking with them now will prevent problems later.
- Review your will and your choice of executor every few years or when your circumstances change.
- Update the will if there are any changes.
It is always a good idea to make a new will if you move between provinces. If someone dies in British Columbia but had a valid will in another province, the executor may be able act on the will. But the process may be more complicated.
|Writing Your Will © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|