Ten Steps to Being an Executor

From Clicklaw Wikibooks
Jump to navigation Jump to search
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Hsia in March 2019.

When the person who makes a will dies, their executor carries out the instructions in the will. Learn the main steps involved.

The executor's role, in a nutshell

Image via www.istockphoto.com

When the will-maker dies, the executor’s responsibilities include:

  • safeguarding the property left behind,
  • paying for the funeral arrangements,
  • locating the property, also known as assets of the estate,
  • paying any debts and taxes, and
  • distributing what remains of the estate to the people named in the will (the beneficiaries).

Step 1. Find the will

The first step is to locate the will.

The original will may be in the will-maker’s home, in a safety deposit box, or at the office of the lawyer or notary public who drafted the will.

If you need to look in a safety deposit box for the original will, make an appointment with the bank. You’ll need a key to the box, your own identification, and a copy of the death certificate. If you can’t find the key, the bank may permit the box to be drilled open for a charge.

If the will is in the safety deposit box and names you as executor, the bank will let you take the will. With a bank representative, you must make a list of the contents of the box and leave the list in the box before you remove any contents. You’ll need a copy of this list if you probate the will.

How to search the Wills Registry

If you still can’t find the will, you can do a search of the Wills Registry by submitting a completed application form and fee to the Vital Statistics Agency. If a lawyer isn’t assisting you, you’ll need to provide a copy of the death certificate. You’ll be provided with a certificate of wills search. You’ll need a copy of this certificate if the will needs to be probated.

See the Vital Statistics Agency website for the application form, the current fee, and instructions. Their contact information is:

Vital Statistics Agency
Victoria: 1-250-952-2681
Toll-free: 1-888-876-1633
Web: gov.bc.ca/vitalstatistics

Getting a copy of the death certificate

Some outside parties may need you to produce a copy of the death certificate before they will deal with you. You can get a copy of the death certificate from the funeral services provider or order one from the Vital Statistics Agency. See the Vital Statistics Agency website for the application form, the current fee, and instructions. If you want to deal with more than one institution at a time, you can order more than one death certificate.

After locating the will

Once the will is in your hands, you’ll need to confirm:

  • If there are instructions about the will-maker’s wishes for organ donation, burial or cremation, and their funeral or memorial service.
  • Whether you need to probate the will. If so, you’ll need the original will.
  • That the will you have is the most recent one. People can make multiple wills over their lifetime.
  • If you’re named as the executor.

Step 2. Confirm the validity of the will

Once you’re confident you have the original and most recent version of the will, you’ll have to make sure it’s valid. A will might be invalid if:

  • It was not properly signed or witnessed: For example, a will must be signed at the end by the will-maker in front of two witnesses present at the same time.
  • The will-maker didn’t have the legal capacity to make a will: To make a will in BC, a person must be age 16 or over and mentally capable of making a will.
  • The will-maker was under duress or subject to undue influence: A will or a gift in a will may be invalid if the will-maker was dominated by or dependent upon another person who persuaded the will-maker to leave them something in the will.

Step 3. Protect the assets

As the executor, you’re holding assets for the beneficiaries. So it’s your responsibility to make sure the assets are safe and properly insured. For example:

  • Search for cash, jewelry, securities, and other valuables. Arrange for their safekeeping.
  • Lock up the deceased’s residence, if no one’s living in it. If it’s vacant and not being supervised, tell the police.
  • Check on the insurance of the home and any vehicles. Check the insurance expiry dates. If the deceased lived alone, check the vacancy provisions to ensure that the coverage continues — most home insurance is cancelled automatically if the home is vacant for more than 30 days.

There are other things you should do right away

Other steps you should take to protect the assets include:

  • Notify financial institutions where the deceased held accounts on their death.
  • Cancel any credit cards.
  • Cancel any subscriptions and redirect mail to a safe location.
  • Apply for Canada Pension Plan death benefits.
  • If the deceased owned a business, arrange for its ongoing management.
  • If the will includes a trust, take steps to ensure that the assets that form part of the trust are properly invested or kept in a safe place.

Step 4. Arrange the funeral

The executor is responsible for making funeral arrangements and paying the funeral expenses. There are many decisions you’ll need to make, usually in a very short time period. For example:

  • Will the deceased be buried or cremated?
  • Where and when will the funeral or memorial be?
  • Will you publish an obituary and service announcement?

People often leave instructions about what they want, either in their will or a letter. Try to honour the will-maker’s wishes, when possible. And consult their relatives.

You should follow what the will says

Where the will sets out the will-maker’s wishes for burial or cremation, those wishes are binding on the executor, unless they’re unreasonable, impractical, or cause hardship. If you’re not willing or able to give instructions on burial or cremation, the deceased’s spouse may. If there’s any question about what the will-maker wanted, the executor has the legal authority to decide.

Step 5. Communicate with the beneficiaries

Once the funeral is over, family members and beneficiaries are often anxious to know about what happens next and when they will receive their inheritance.

Once you understand the terms of the will, it’s important to communicate with the beneficiaries. Although you’re not strictly required to hold a meeting with them, doing so allows you to:

  • review the terms of the will and explain next steps,
  • set expectations around timelines for administering the estate and distributing the assets,
  • discuss your duties and liabilities as executor,
  • request approval if you want to charge a fee,
  • gather personal information from the beneficiaries (for example, their full name, address, and Social Insurance Number), and
  • discuss how the personal assets (such as photo albums or household goods) will be divided.

Step 6. List the assets and liabilities

Making an inventory of the estate is one of your most significant tasks as executor. The inventory lists the estate assets and liabilities, valued as at the date of death.

Assets you may need to find include:

  • Bank accounts: Contact the will-maker’s bank or credit union to get a picture of the account balances, outstanding loans, and investments held by the deceased when they died. You may want to pool all of the money into one account to make it easier to deal with.
  • Life insurance: Check if the deceased had any life insurance policies, including group insurance or other plans. If so, you’re responsible for making any life insurance claims.
  • Wages and benefits: Contact the will-maker’s employer. You’ll need to check if they still owe the deceased any income. Also, figure out if the spouse or family are entitled to any benefits arising out of the deceased’s employment.
  • Government benefits: Contact Canada Pension Plan and Old Age Security to cancel pension benefits. Determine whether the surviving spouse or children are eligible for survivor or continuing benefits.
  • Investments: Locate all original investment certificates, stocks, or bonds, and obtain the market value as of the date of death.
  • Real estate: List all real estate that the will-maker owned alone or with others. List any mortgages. Have appraisals done, as of the date of death, on any properties that were not jointly owned.
  • Personal possessions: List any other assets, including cars, boats, household goods, jewelry, electronic equipment, collections such as coins or art, and other personal effects. Estimate values. Where you’re not sure, get an appraisal.

Any letters you write to request this information will need to include proof of death and a copy of the will to prove your authority to act for the estate. If a third party refuses to give you information about estate assets, you might need to consult with a lawyer.

Step 7. If necessary, apply for probate

As the executor, you may need to apply to court to probate the will. Probate is a legal process that confirms that the will is legally valid and can be acted on. Not all wills need to be probated.

If everything’s in order, the court issues a grant of probate. This document allows other parties such as banks and the Land Title Office to be sure that you’re someone who’s authorized to deal with estate assets. See the section on “Probating the Will.”

Probate might not be required for small estates

If the estate involves less than $25,000, probate is not typically required. It’s up to the organizations who hold the deceased’s assets whether they’ll transfer them to you without probate. Contact them to find out what they require.

Probate isn’t required for assets passing outside of the will

Probate is only required for estate assets. Not all things owned by the will-maker form part of the estate. Certain types of assets “pass outside the will.” This means you can transfer these assets to someone without a grant of probate (though you’ll still need a copy of the death certificate).

Usually, property owned jointly by the will-maker and a joint owner automatically becomes the exclusive property of the joint owner. Common examples include a joint bank account or a house owned in joint tenancy. Joint tenancy is a way that property can be owned where each owner has the same interest in and an equal right to use the property — not to be confused with holding a property as tenants in common.

Certain assets where the will-maker designated a beneficiary will also pass outside the will. The beneficiary is entitled to receive the proceeds when the owner dies. Examples include a life insurance policy or a retirement benefit plan where the will-maker named a beneficiary. Many couples will hold all their assets through joint ownership or with beneficiary designations to avoid probate.

If the will-maker owned land

If the will-maker owned land other than in joint tenancy, then probate is required. The Land Title Office will require you to provide a grant of probate to transfer the land. This is so even if the will-maker’s interest in land is less than the $25,000 threshold.

Step 8. Deal with debts and taxes

Once you have the grant of probate (if probate is required) you’ll be able to transfer the estate assets into your name as executor. Once you have access to the deceased’s money, you can settle the deceased’s debts and any expenses that you incur in the course of administering the estate. These include:

  • the funeral expenses,
  • any lawyer or accountant fees,
  • any amounts owing relating to their home, including utilities or strata fees,
  • the probate fees,
  • municipal and income taxes owing, and
  • all other claims as of the date of death.

You’ll need to do this before you distribute any assets.

Protect yourself from liability

If you don’t pay the deceased’s debts, including any taxes owed, before you distribute the estate, you could be on the hook for the deceased’s debts.

To find out who the deceased owed money to, look in the deceased’s records for evidence of mortgages, loans, and accounts with outstanding charges.

Depending on the circumstances, you may want to advertise for possible creditors. Advertising for creditors involves placing a notice in the BC Gazette, a government publication. A creditor will have 30 days after publication of the notice to come forward with a claim against the estate. After 30 days, you may distribute the estate and you won’t be liable for any creditor claims that weren’t raised.

Prepare and file income tax returns

As executor, you’re responsible for filing income tax returns for the deceased and possibly for the estate:

  • You must file a tax return for the deceased for the year of death.
  • If the deceased didn’t file a return for any year before the year of death and tax is payable, you’ll need to file a tax return for the person for those prior years as well.
  • If the estate earns any income before distribution to the beneficiaries, you’ll need to file a tax return for the estate for each year after the date of death.
  • If the will establishes a trust, you must file a tax return for the trust.

If the deceased had assets or income in another country, you may need to file a foreign income tax return as well.

After the income tax is reported, assessed and paid, apply for a clearance certificate. For your own protection, you should have this certificate before you begin to distribute the estate. For more information, see the Canada Revenue Agency publication Preparing Returns for Deceased Persons, available at canada.ca/tax or by calling 1-800-959-8281.

Step 9. Account to the beneficiaries

Before you distribute the estate, you must give the beneficiaries an accounting of your administration of the estate and they must agree with it.

Prepare a final statement of assets, debts, income, expenses, and distribution for the beneficiaries to approve. If they refuse to approve it, you will need to have the accounts reviewed by the court so that your administration is approved. This process is called the “passing of accounts.”

In the accounting, set out any executor’s fee you’re charging and any expenses you’re claiming. If the beneficiaries don’t agree with your proposed fee, you’ll need to get your accounts reviewed by a registrar of the court, who will set the fee.

Step 10. Distribute the estate

Once you ensure that all debts, expenses, and taxes have been paid, that all claims against the estate have been satisfied, and that your accounts have been approved by the beneficiaries or the court, you can distribute the remainder of the estate.

If probate is required, the law says that you can’t distribute the estate until 210 days after probate is granted and no claim is made against the estate. If every person who has a potential claim on the estate signs a form saying they won’t challenge the will, you can go ahead and distribute sooner. There are certain people who can’t provide consent to early distribution, such as a minor child.

The will can be challenged by the deceased’s spouse or children

In general, the will-maker is free to leave their estate to whomever they want. However, the law requires that the will-maker adequately provide for their spouse and children through the will. A spouse or child can apply to court for a share of the estate that is fair in the circumstances.

A spouse includes a common-law spouse. This is a person the will-maker lived with in a marriage-like relationship for at least the two years prior to their death.

The process of distribution

Estate assets are transferred first to the executor, and then to the beneficiary. These steps are often done at the same time. The Land Title Office has the forms for transferring real estate. Autoplan handles transfers of motor vehicles.

First, distribute any specific gifts of money or property. Sometimes the will-maker attaches a separate list with the will that says who should receive particular items. That list may or may not be binding on the executor, depending on what the will says and the form of the separate list.

If any cash and belongings remain after you distribute the specific gifts, divide what remains — known as the residue — as the will says. For example, the will may say to distribute the residue equally amongst the will-maker’s children. If the will doesn’t have a residue clause, you must distribute the residue as if there was no will. This is called “intestacy.” If this situation occurs, it’s best to seek legal advice.

A witness may be able to receive a gift

Check if anyone receiving a gift under the will is a witness. They may be able to inherit under a will. The witness has to apply to court and show that the will-maker intended to make the gift even though the beneficiary was a witness. If the court isn’t satisfied, the gift to the witness is void. Either way, the remainder of the will won’t be affected.

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