Difference between revisions of "Ten Steps to Being an Executor"

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(19 intermediate revisions by 2 users not shown)
Line 1: Line 1:
{{REVIEWEDPLS | reviewer = [[Helen Low|Helen Low, QC]]|date= January 2016}}{{Being an Executor TOC}}  
{{REVIEWEDPLS | reviewer = [[Stephen Hsia|Stephen Hsia]]|date= March 2019}}{{Being an Executor TOC}}  
Being the [[Being Asked to Be an Executor|executor of someone's estate]] can be time-consuming and intimidating. This section outlines the main steps involved.  
When the person who makes a will dies, their '''executor''' carries out the instructions in the will. Learn the main steps involved.


== What are the key responsibilities of the executor? ==
== The executor's role, in a nutshell ==
[[File:beinganexecutor-contents2.png|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.flickr.com</span>]]On a person’s death, the executor’s responsibilities include:
[[File:Being an Executor - Contents4.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]
* safeguarding the property left behind, such as by notifying the house insurance company if the house is now unoccupied,  
When the will-maker dies, the executor’s responsibilities include:
* making the funeral arrangements and paying the funeral expenses from the deceased’s '''estate''',
* safeguarding the property left behind,  
* paying for the funeral arrangements,
* locating the property, also known as '''assets''' of the estate,
* locating the property, also known as '''assets''' of the estate,
* paying any '''debts''' and taxes, and   
* paying any '''debts''' and taxes, and   
* distributing what remains of the estate among the people named in the will to receive a share of the estate, known as the '''beneficiaries'''.
* distributing what remains of the estate to the people named in the will (the '''beneficiaries''').


{{PLSTipsbox
{{PLSTipsbox
| text = The executor is a trustee, bound to act for the good of the estate, even though the executor may also be a beneficiary or have a personal interest in the estate assets. The executor must put the interests of the estate before their own personal interests. As a trustee, the executor is accountable to the beneficiaries. For example, as executor, you must keep records and give all beneficiaries a final statement of accounts.  
| text = The executor is bound to act for the good of the estate, even though they may also be a beneficiary. The executor must put the interests of the estate before their own personal interests. As a '''trustee''', the executor is accountable to the beneficiaries. For example, as executor, you must keep records and give all beneficiaries a final statement of accounts.
}}
}}


== What if you don't want to act as executor? ==
== Step 1. Find the will ==
Before you do anything as executor, you should first decide if you are prepared to take on the responsibility. You don’t have to. However, if you start dealing with any assets of the estate, you are legally bound to continue until you get discharged. Examples of dealing with an asset include paying debts or changing the insurance on a house. You are said to have '''intermeddled''' in the estate, and you can only be relieved of being the executor by a court order discharging you.


If you haven’t started dealing with any of the estate assets, you can decline or '''renounce''' your appointment as executor by filing a form in court. The form is called a [http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/probate/p17.pdf Notice of Renunciation]. If the documents required for the grant of probate (explained below) have not already been filed in court, you will also need to file them with your renunciation.
The first step is to locate the will.  
 
If two people are named as co-executors, one of the co-executors can decide they do not want the job. It will not be necessary for the co-executor who does not want the job to complete the Notice of Renunciation form.
 
If there is no co-executor, the alternate executor can take over, as most wills name an alternate in case the executor is unable to act. If there is no alternate named in the will, someone will have to apply to court to become '''administrator''' of the estate. The process is similar to the process to probate the will, described below.
 
{{PLSStorybox
| image = [[File:Headshot_-_Being_an_Executor_-_Henry_-_2017-03-16.jpg |link=]]
| text      = "I found out after my brother died that he had named me executor. He didn’t ask me first. Although I loved my brother, I didn’t want the job. I was 78 years old. Also, I live in Alberta and he lived in BC. It was going to be too difficult. So I signed a Notice of Renunciation form, and the alternate executor took over." <br>- Henry, Edmonton}}
 
== Step 1. Locate the will ==
As executor of someone’s estate, your first step is to locate the original will. The will may have instructions about the will-maker’s wishes for organ donation, burial or cremation, and their funeral or memorial service. You need the original will if you are required to probate the will.
 
=== How can you find 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.  
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.  


To check on the location of the will, you can do a search of the [http://www2.gov.bc.ca/gov/content/life-events/death-and-bereavement/wills-registry Wills Registry] maintained by the provincial government’s Vital Statistics Agency. [[Ten Steps to Being an Executor#How do I search the Wills Registry?|See below for details on how to do the search]]. If the will-maker filed a notice of their will with the Registry, the search certificate will indicate the location of the original will. Filing a Wills Notice is optional, so it’s possible the will-maker didn’t file a notice or may have since moved the will or revoked it.  
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 you need to look in a safety deposit box for the original will, make an appointment with the financial institution. You will need a key to the box, your own identification, and a copy of the '''death certificate''' ([[Ten Steps to Being an Executor#How do I get a copy of the death certificate?|see below for how to get a copy]]). 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.


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 will need a copy of this list if you are required to probate the will.
=== How to search the Wills Registry ===
If you still can’t find the will, you can do a [https://www2.gov.bc.ca/gov/content/life-events/death/wills-registry 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.


=== How do you search the Wills Registry? ===
See the Vital Statistics Agency website for the  
 
application form, the current fee, and instructions. Their contact information is:   
You can search the [http://www2.gov.bc.ca/gov/content/life-events/death-and-bereavement/wills-registry Wills Registry] by submitting a completed [http://www2.gov.bc.ca/assets/gov/health/forms/vital-statistics/vsa532_fill.pdf application form] and fee to the Vital Statistics Agency. If you are not a lawyer or notary public, you must provide a copy of the death certificate with your search application. See the [http://www.vs.gov.bc.ca Vital Statistics Agency website] for the application form, the current fee, and instructions. Their contact information is:   
: Vital Statistics Agency
: Vital Statistics Agency
: Victoria: 1-250-952-2681
: Victoria: 1-250-952-2681
: Toll-free: 1-888-876-1633
: Toll-free: 1-888-876-1633
: [http://www.vs.gov.bc.ca www.vs.gov.bc.ca]
: Web: [http://gov.bc.ca/vitalstatistics gov.bc.ca/vitalstatistics]


You will be provided with a Certificate of Wills Search. You will need a copy of this certificate if you are required to probate the will.
=== 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 [https://www2.gov.bc.ca/gov/content/life-events/death/death-certificates 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.


=== How do you get a copy of the death certificate? ===
=== After locating the will ===
 
Once the will is in your hands, you’ll need to confirm:
When a person dies in British Columbia, the death must be registered with the [http://www.vs.gov.bc.ca/ BC Vital Statistics Agency]. Registration creates a legal record of the death. It also results in the issuing of a death certificate, which you will need to apply for benefits and to settle the legal and business affairs of the deceased.
* 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.
The death certificate may be obtained by the funeral services provider, or you can order a death certificate from the Vital Statistics Agency. See the Vital Statistics Agency website at [http://www.vs.gov.bc.ca www.vs.gov.bc.ca] for the [http://www2.gov.bc.ca/assets/gov/health/forms/vital-statistics/vsa430d_fill.pdf application form], the current fee, and instructions.  
* 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.
Some institutions will require the “original” death certificate or a notarized copy, while others will accept a regular copy. You may wish to order two originals, then have additional “certified true copies” prepared by a notary public or a lawyer if needed.
 
{{PLSTipsbox
| text = The funeral home will ask you how many “original” death certificates you will require. There is a cost for each original certificate: to [http://www2.gov.bc.ca/gov/content/life-events/death-and-bereavement/death-certificates order one directly from BC Vital Statistics] costs $27. For most estates, two original death certificates should be sufficient.
}}


== Step 2. Confirm the validity of the will ==
== Step 2. Confirm the validity of the will ==


=== Once you've located the will, what's the next step? ===
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.  
Once you are confident you have the original last will of the will-maker, make sure that it is valid. There are several ways in which a will might be invalid or might need to be rectified by a court:
* '''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.  
* '''It might not have been properly witnessed or signed:''' 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 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.
* '''The will-maker might not have had 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 might have been 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 make the gift.
 
If any of these concerns arise, it is important to seek the advice of a lawyer.


{{PLSTipsbox
{{PLSTipsbox
| text     = If you have concerns about the validity of the will, or a reasonable belief that a newer will exists, it is important to seek professional advice before taking any further steps in relation to the estate.
| text = If you have concerns about the validity of the will, or a reasonable belief that a newer will exists, it’s important to seek legal advice before taking any further steps with the estate. A court may be able to rectify — that is, correct or amend — certain flaws in a will.
}}
}}
=== Can a witness to a will receive a gift under the will? ===
It used to be that a person who witnessed a will could not also be a beneficiary. But now, a witness 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 to the will. If the court isn’t satisfied, the gift to the witness is void. Either way, the remainder of the will is not affected.


== Step 3. Protect the assets ==
== Step 3. Protect the assets ==
[[File:beinganexecutor-contents3.png|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.shutterstock.com</span>]]
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:
As the executor it is your responsibility to protect the assets of the deceased. You should make sure the assets are safe and properly insured. For example:
* Search for cash, jewelry, securities, and other valuables. Arrange for their safekeeping.
* If the deceased's home is not occupied, make sure the home is secured, appliances turned off, and any pets are looked after. If the home is to remain vacant, tell the police.
* Lock up the deceased’s residence, if no one’s living in it. If it’s vacant and not being supervised, tell the police.
* Make sure any vehicle owned by the deceased is locked in a safe place.
* 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.
* Safeguard any wallet, purse or briefcase owned by the deceased.
* Secure the deceased’s key pieces of identification, such as their social insurance card, medical card, driver’s licence, and passport.
=== There are other things you should do right away ===
* Search for credit cards, cash, jewelry, securities, and other valuables, and arrange for their safekeeping.
* Check on the insurance of the home and any vehicles. Check the expiry dates of the insurance. 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).  
 
=== What other things should you do right away? ===  
Other steps you should take to protect the assets include:
Other steps you should take to protect the assets include:
* Notify financial institutions where the deceased held accounts.  
* Notify financial institutions where the deceased held accounts on their death.  
* Cancel any credit cards.
* Cancel any credit cards.
* Cancel any subscriptions and redirect mail to a safe location.  
* Cancel any subscriptions and redirect mail to a safe location.  
* Apply for [http://www.servicecanada.gc.ca/eng/lifeevents/loss.shtml Canada Pension Plan death benefits].
* Apply for Canada Pension Plan death benefits.
* If the deceased owned a business, arrange for its ongoing management.
* 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.
* 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.


{{PLSTipsbox
{{PLSTipsbox
| text     = A trust is a part of the estate that is set aside in the will for a beneficiary, often a child, on certain terms. For many estates, the executor is often also the trustee. The trustee is responsible for:  
| text = A '''trust''' is a part of the estate that is set aside in the will for a beneficiary, often a minor child, on certain terms. Many wills name the executor as the trustee as well. The trustee is responsible for:  
* making sure that all the assets that form part of the trust are properly invested or kept in a safe place,  
* making sure that all of the trust assets are properly invested or kept in a safe place,  
* filing annual trust tax returns, and  
* filing annual trust tax returns, and  
* making payments to the beneficiary of the trust as directed by the will.  
* making payments to the beneficiary of the trust as instructed by the will.  
}}
}}


== Step 4. Arrange the funeral ==
== 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?


The executor is responsible for the funeral arrangements and paying the funeral expenses. There are many decisions to make when arranging the funeral, usually in a very short time period. For example:
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.  
* Where and when will the funeral be?
* Will the deceased be buried or cremated?
* Will there be an obituary notice or funeral announcement published in the paper?
 
Often people leave instructions about what they want, either in their will or a letter. When possible, arrangements should be in accordance with the will-maker’s wishes. You’ll also want to consider the wishes of the relatives.
 
=== Are the will-maker's wishes binding on the executor? ===
 
Where the will sets out the will-maker’s wishes for burial or cremation, those wishes are binding on the executor, unless they are unreasonable or impracticable or cause hardship. If as the executor you are unwilling or unable to give instructions on the question of burial or cremation, the spouse may.


If there is any question about what the person wanted, the executor has the legal authority to decide.
=== 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.


{{PLSTipsbox
{{PLSTipsbox
| text     = To pay the funeral expenses, you could take the invoices to the bank where the deceased kept an account. If there’s enough money in the account, the bank will typically give you funds from that account to pay the expenses.  
| text = Take the invoices for the funeral to the bank where the deceased kept an account. If there’s enough money in the account, the bank will typically give you funds from that account to pay these expenses.  
}}
}}


See the People's Law School publication ''A Death in Your Family'' for [[Making the Funeral Arrangements|more on making the funeral arrangements]].
== 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.
== Step 5. Communicate with beneficiaries ==


Once the funeral is over, family members and beneficiaries are often anxious to know about the estate, 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:
 
Once you understand the terms of the will, it is important to communicate with the beneficiaries. Although it’s not mandatory to hold a meeting with the beneficiaries, doing so allows you to:
* review the terms of the will and explain next steps,
* review the terms of the will and explain next steps,
* set expectations around timelines for administering the estate and distributing the assets,
* set expectations around timelines for administering the estate and distributing the assets,
* discuss the different duties and liabilities of the executor,
* discuss your duties and liabilities as executor,
* request approval for compensation, if you intend on charging a fee,  
* 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
* gather personal information from the beneficiaries (for example, their full name, address, and Social Insurance Number), and
* discuss how the personal assets will be divided.
* discuss how the personal assets (such as photo albums or household goods) will be divided.


== Step 6. List the assets and liabilities ==  
== 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'''.


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.  


Among the steps to take to identify the assets are:
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.
* '''Bank accounts:''' Contact the will-maker’s bank or credit union to gather information on account balances, loans outstanding, and investments held as of the date of death. You may want to put all money into one account for the estate.
* '''Life insurance:''' Begin claims on life insurance policies including group insurance or other plans.
* '''Wages and benefits:''' Contact the will-maker’s employer to verify any income owing and to determine any benefits to which the spouse or family may be entitled.
* '''Government benefits:''' Contact [https://www.canada.ca/en/services/benefits/publicpensions/cpp/cancel-cpp.html Canada Pension Plan and Old Age Security] to cancel pension benefits. Establish whether any 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.  


Letters requesting this information will need to include proof of death and a copy of the will to demonstrate your authority to act on behalf of the estate. If the third party will not release the information about the estate assets, you may need to consult with a lawyer for assistance.
{{PLSTipsbox
{{PLSTipsbox
| text     = As executor, you are responsible to account for the estate assets. Keep records of all income received and any expenses paid. Keep all receipts. Keep copies of all letters and forms you send.  
| text = As executor, you’re responsible to account for the estate assets. Keep '''records and receipts''' of any estate expenses paid and income received. Keep copies of all letters and forms you send.
}}
}}
In listing the liabilities of the deceased, include:
* the funeral expenses,
* any amounts owing relating to their home, including utilities, rent, or strata fees,
* any professional fees,
* if the will is probated, the probate fees,
* municipal and income taxes owing, and
* all other claims as of the date of death.


=== What can you do to protect yourself from liability? ===
== 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.


As the executor, you could be personally liable if you don’t pay the deceased’s debts, including any taxes owed, before you distribute the estate.  
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]].


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.  
=== 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.  


Depending on the circumstances, you may want to advertise for possible creditors. Advertising for creditors involves placing a notice in the [https://www.crownpub.bc.ca/Home/Gazette ''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 will not be liable for any claim that wasn’t brought forward.
=== 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).  


{{PLSTipsbox
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.
| text = An executor must notify a surviving spouse that he or she may have a right to the spousal home. If the executor disposes of the home without having provided proper notice, the executor may be liable.
}}


== Step 7. If necessary, apply for probate ==
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.
[[File:beinganexecutor-contents4.png|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.shutterstock.com</span>]]
Many couples will hold all their assets through joint ownership or with beneficiary designations to avoid probate.
As the executor, you may need to '''probate''' the will. In the probate process, you submit special forms and the will to court;  see the section "[[Probating the Will]]" for details. If everything is in order, the court issues a grant of probate. This document allows financial institutions and other organizations such as the Land Title Office to rely on the will as being the last will made by the will-maker.


=== When is probate required? ===
=== 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.


Not all wills need to be probated. If the estate involves less than $25,000, probate is not typically required.  
== 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.  


It depends in part on the type of assets involved. Not all things owned by the will-maker form part of the estate. Certain types of assets “pass outside the will”. For example, property owned jointly by the will-maker and someone else automatically becomes the exclusive property of the other joint owner. Examples include a joint bank account or a house owned in joint tenancy. As the executor, you will be able to transfer these assets to the joint owner without a grant of probate (note that you will need to provide the death certificate).  
You’ll need to do this before you distribute any assets.


Assets where the will-maker designated a beneficiary also pass outside the will. The beneficiary is entitled to receive the proceeds on the death of the owner. Examples include a life insurance policy or a retirement benefit plan where the will-maker designated a beneficiary.  
{{PLSTipsbox
| text = If the estate doesn’t have enough money to pay its debts, it’s important to get advice from a lawyer as soon as possible. You don’t want to become '''personally liable''' for the debts.
}}


Many couples will hold all their assets through joint ownership or with beneficiary designations so when one of them dies, no probate is required.
=== 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.  


=== What if the will-maker owned land? ===
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.


If the will-maker owned land other than in joint tenancy, then probate is required. For example, if the will-maker’s only asset was 10 percent of a piece of property in BC worth $200,000, the value of the estate would be $20,000 (less than the $25,000 threshold). However, the Land Title Office will still require that you provide a grant of probate to transfer the land.
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.
 
=== What if the estate involves more than $25,000? ===
If the estate assets are worth more than $25,000, probate will usually be required. It is up to the institutions who hold the assets whether they will transfer them to you without probate. Check with the institutions that hold the deceased’s assets to find out what they require.
 
== Step 8. Deal with debts and taxes ==
If probate is required, once you have the grant of probate, you will be able to transfer the estate assets into your name as executor. With the assets, you can then settle the deceased’s debts and any expenses that you incur in the course of administering the estate.  


{{PLSTipsbox
{{PLSTipsbox
| text = If the estate does not have enough money to pay all outstanding debts, it is very important to get advice from a lawyer as soon as possible so that you do not become personally liable for the debts.
| text = As executor, you must notify a surviving spouse that he or she may have a right to the spousal home. If you transfer the home without providing proper notice, you may be liable.
}}  
}}


=== Prepare and file income tax returns ===
=== Prepare and file income tax returns ===
 
As executor, you’re responsible for filing income tax returns for the deceased and possibly for the estate:   
As executor, you must file 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.   
* You must file a tax return for the deceased for the year of death.   
* If the deceased had not filed a return for any year before the year of death and tax is payable, you must file a tax return for the person for those prior years.
* 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 must file a tax return for the estate for each year after the date of death.  
* 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 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.  
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 [http://www.cra-arc.gc.ca/tx/ndvdls/lf-vnts/dth/clrnc-eng.html Clearance Certificate]. For your own protection, you should have this certificate before you begin to distribute the estate.  
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 [http://canada.ca/tax canada.ca/tax] or by calling 1-800-959-8281.
 
For more information, see the Canada Revenue Agency publication [http://www.cra-arc.gc.ca/E/pub/tg/t4011/ ''Preparing Returns for Deceased Persons''], available at [http://www.cra-arc.gc.ca www.cra-arc.gc.ca] or by calling 1-800-959-8281.


== Step 9. Account to the beneficiaries ==
== 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.


Before you distribute the estate among the beneficiaries, you must give them 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'''.


Prepare a final statement of assets, debts, income, expenses and distribution. This statement is 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.
 
In the accounting, set out any executor’s fee you are charging. If the beneficiaries do not agree with the proposed executor fee, you will need to have your accounts reviewed by a Registrar of the Court, who will set the fee.


{{PLSTipsbox
{{PLSTipsbox
| text = The beneficiaries must approve your statement of accounts. In seeking their approval, you should ask them to sign a release. In the release, the beneficiary agrees, in consideration for receiving the gift from the estate, not to make any claims against you related to your work as executor.  
| text = You should '''ask the beneficiaries to sign a release''' when they approve your statement of accounts. In the release, the beneficiary agrees, in consideration for receiving their gift from the estate, not to make any claims against you related to your work as executor.  
}}
}}


== Step 10. Distribute the estate ==
== 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.


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.  
 
If probate is required, you may not distribute the estate until 180 days after probate is granted and no claim is made against the estate. You do this to make sure that no one is going to challenge the will. If all those who have a claim on the estate sign a form saying they will not challenge the will, you can go ahead sooner.


=== Who can challenge the will? ===
=== 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. 


In general, the will-maker is free to leave their estate to whomever they want. However, the law does require that the will-maker make adequate provision for the proper maintenance and support of their spouse and children. The spouse or children can apply to court for a portion of the estate that is “adequate, just and equitable 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.


A spouse includes a common-law spouse, which is a person the will-maker lived with in a marriage-like relationship for at least the two years prior to the death of the will-maker.
=== 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'''.


=== How does the distribution work? ===
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.


In distributing the estate, first distribute any gifts of specific 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 the will.  
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.  


Estate assets are transferred first to the executor, and then to the beneficiary. These steps are often done at the same time. The [https://ltsa.ca Land Title Office] has the forms for transferring real estate. [http://www.icbc.com/vehicle-registration/sell-vehicle Autoplan] handles transfers of motor vehicles.
=== 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.


If any cash and belongings remain after you distribute the specific gifts, divide what remains, known as the '''residue''', as instructed by the will. If the will does not have a residue clause, you must distribute the remainder as if there was no will. This is called “intestacy”. You will need to get legal advice if this situation occurs.


{{Being an Executor Navbox}}
{{Being an Executor Navbox}}

Latest revision as of 22:56, 21 March 2019

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.