Being Asked to Be an Executor

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Helen Low, QC in January 2016.
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An executor is the person named in a will to carry out the instructions contained in the will.

What's involved in being an executor?

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.

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.

How difficult is it to be an executor?

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 owns a business,
  • the will includes a trust, or
  • the will is challenged by someone who feels left out of the will.

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 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.

How does it work if more than one executor is appointed?

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.

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.

When does the responsibility of executor end?

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 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.

Could you get help from professionals?

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.

Most estates where there is real estate or bank holdings require a legal procedure called 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.

Professional fees are paid out of the estate, as long as they are reasonably incurred.

And if you agree to act as someone's executor?

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.

Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence Being an Executor © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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