Difference between revisions of "Your Duties As Executor"

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{{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert|date= October 2018}} {{Dial-A-Law TOC|expanded = wills}}
As an '''executor''', you’re in charge of looking after the will-maker’s affairs after they pass away. Before you accept to act as an executor, you should understand an executor’s duties.


{{Dial-A-Law TOC|expanded = wills}}
==Understand your legal rights==
This script discusses your duties as an executor under a will and what you have to do to probate an estate.


==What does it mean to probate an estate?==
===The role of an executor===
Probate is the process of getting the court to rule that a will is legally valid. With some exceptions, the estate consists of any land, house, money, investments, personal items and other assets that the deceased owned. The person who died and made the will is called the “testator”.
An executor is a person named in a will to deal with the will-maker’s estate after they die. The person who died and wrote the will is called the '''will-maker''' (also called the '''deceased'''). An executor gathers up the estate assets, pays the debts of the deceased, and divides what remains of the deceased’s estate among the '''beneficiaries'''. The beneficiaries are the people named in the will to inherit the estate. There can be more than one executor.


==What is an executor, and what does the executor do?==
===You don’t have to act as executor===
The executor is named in a will. In general, the executor gathers up the estate assets, pays the deceased’s debts, and divides what remains of the deceased’s estate among the beneficiaries.
If you’ve been appointed as an executor under a will, but aren’t interested in taking on the job, you don’t have to. This is the case only if you haven’t already dealt with any of the estate assets. “Dealing with an asset” may mean paying debts or changing the insurance on a home.


==How do you confirm that you were named as the executor?==
Acting as an executor can be challenging, time-consuming, and stressful. You should agree to be executor only if you can take on this responsibility. And you can’t assign it to anyone else.
You need to get the original version of the will to check this. If it's not at the deceased testator’s home, the will may be in a safety deposit box, at the office of the lawyer who drafted the will, or it may be found by a search with the Vital Statistics Agency.


To look in the safety deposit box, phone the bank and make an appointment. Take the key, a death certificate and your own identification. If the will is there and names you as executor, the bank will let you take the will. You and a bank employee will then list the contents of the safety deposit box. You need to keep a copy of that list.
===Once you begin dealing with the estate assets, you’re legally bound to finish the job===
If you start dealing with estate assets, you can be relieved of your responsibility only by a court order. If the executor dies before completing their duties (and there is no alternate executor named in the will who is willing to be executor) then the executor’s executor (named in the executor’s will) becomes the new executor, in most cases.


The other thing you can do is search for a wills notice at the Vital Statistics Agency. The testator or the testator’s lawyer may have registered a wills notice with Vital Statistics. This notice tells where the testator planned to keep the original will. If a wills notice was registered, you’ll be able to locate and obtain the original version of the will and confirm that you were named as the executor. For the Vital Statistics Agency office closest to you, call 250.952.2681 or check the Vital Statistics website at [http://www.vs.gov.bc.ca www.vs.gov.bc.ca].
===If you decide to act, you may need to probate the estate===
'''Probate''' is the process of applying to court for a ruling that a will is legally valid and confirming that an executor is authorized to deal with the estate. An '''estate''' consists of any land, house, money, investments, personal items, and other assets that the deceased owned (with some exceptions, explained shortly).


==Decide if you want to be the executor==
===Some estates don’t require probate===
If you haven’t yet dealt with any of the estate assets, you cannot be made to act as the executor. Acting as an executor can be very challenging, and you should only take on this responsibility knowing that the task will be time-consuming and stressful. Once you begin the process of dealing with the estate assets, you’re legally bound to complete the job, and you can only be relieved of your responsibility by a court order.
Estates that involve a small amount of money ('''under $25,000''') may not need to go through probate. It’s up to the outside parties who hold the deceased’s assets (such as a bank) whether they’ll give the executor those assets without a grant of probate.


==Consider hiring a lawyer==
Certain assets can be dealt with without probate. Land owned in '''joint tenancy''' with another person doesn’t require probate. If the deceased owned land or a home in joint tenancy with another person, you only have to file an application in the Land Title Office along with the death certificate. This will register the land in the name of the surviving joint tenant.
If you decide to act as the executor, consider whether to hire a lawyer to do the paperwork and advise you of your obligations. If you do, the estate pays the lawyer's fees. Ask the lawyer how the legal fees will be calculated, whether as a percentage of the estate or on an hourly basis. But because unexpected matters often arise in estates, it may not be possible to get an exact estimate of the fees. It’s a good idea to hire a lawyer for any estate involving the distribution of assets through a will, where a grant of probate is required. For most estates, it’s also a good idea to also hire an accountant to help with the several tax returns that need to be filed, as proper filing of returns and payment of taxes is one of the executor’s responsibilities.  


==Your first decision as executor may be about funeral arrangements==
Also, probate is not required for joint bank accounts or vehicles owned jointly. Again, the death certificate is usually sufficient to transfer these to the surviving joint owner.
The funeral is your responsibility, although you’ll want to consider the wishes of the deceased person and their relatives. The funeral parlor will ordinarily order you copies of the death certificate. You may take the funeral bills to the bank where the deceased kept an account. If there’s enough money in the account, the bank will give you a cheque from that account to pay the expenses.


==You must also confirm that the will is the deceased’s last will==
In addition, registered retirement savings plans and insurance policies, which typically name a '''beneficiary''' to receive the proceeds when the owner dies, aren’t considered part of the estate, and therefore don’t require probate. You should give the death certificate to any insurance companies and plan administrators that the deceased had plans with. They’ll want the death certificate before paying money to a beneficiary.
You can confirm this by checking with the Vital Statistics Agency at the office closest to you. Most lawyers send a wills notice to Vital Statistics for every will they prepare. Vital Statistics will then send you a ''Certificate of Wills Search''. This tells you if there’s a record of the will and where the will is kept. You need this certificate when you apply to the court for probate. If you can't find the original will, the search results may help you locate it.


==Cancel charge cards and protect the estate==
{| class="wikitable"
You should cancel all the deceased person's charge accounts and subscriptions. Also ensure that the estate is protected. Make sure valuables are safe and that sufficient insurance is in place. You should immediately change the locks on the apartment or house, and put any valuable things into storage. As for insurance, most insurance policies are cancelled automatically if a house is vacant for more than 30 days, so ask the insurance agent about a “vacancy permit.
|align="left"|'''Tip'''
If the estate includes securities, such as stocks and bonds, you may have to apply for probate to transfer them. You should check with the financial institution or transfer agent for each security in the estate because they’ll have different requirements.
|}


==All potential beneficiaries must be notified==
===There are some expenses and fees you can claim===
The Supreme Court Civil Rules and the new ''Wills, Estates and Succession Act (WESA)'' require that all beneficiaries (as well as certain family members who would be heirs if there was no will, or who are eligible to apply to the court to change the will) must be given a written notice, plus a copy of the will. This is generally done by the estate’s lawyer.
You can be paid pack for expenses you paid out of your own pocket while serving as executor. You’ll also have to decide if you also want to claim a fee for acting as executor. This fee can be up to 5% of the estate (under the ''Trustee Act'') and is taxable income to you. If you want to claim a fee, include it in the accounting that you send to the beneficiaries. If the executor and beneficiaries can’t agree on a fair fee for the executor, the court will set it.


==The next step is to prepare and submit the necessary probate documents==
==Deal with the estate==
The probate documents are submitted to court to get probate. Usually, you must get probate of the will to handle the deceased’s estate. You’ll also have to pay the probate fees as assessed by the court registry. The deceased’s bank will usually allow you to take these funds out of the deceased’s account.


==Be aware that you don't always have to apply for probate==
===Confirm you have the most recent will===
It depends on the type of assets in the estate. Certain assets can be passed down without requiring probate. Land owned in joint tenancy with another person doesn’t require probate. If the deceased person owned land or a house in joint tenancy with another person, you only have to file an application in the Land Titles Office along with the death certificate. This will register the land in the name of the surviving joint tenant.
People can make multiple wills over their lifetime. You will need to confirm that the will you have is the most recent one. You need to get the original will to check this.  


Also, probate isn’t required for joint bank accounts or vehicles owned jointly. Again, the death certificate is usually sufficient to transfer these to the surviving joint owner.
The will-maker or their lawyer may have registered a '''wills notice''' with BC’s Vital Statistics Agency. You should do a search of the [https://www2.gov.bc.ca/gov/content/life-events/death/wills-registry wills registry] of Vital Statistics to ensure you are dealing with the most recent last will. A wills notice will tell you the dates of any wills the will-maker registered with the wills registry.  


In addition, RRSPs and insurance policies, which typically name a beneficiary to receive the proceeds in case of the person’s death, aren’t considered part of the estate, and therefore don’t require probate. You should give the death certificate to any insurance companies and RRSP administrators that the deceased person had plans with. They’ll want the death certificate before paying money to a beneficiary.
If you need to find the original will, a wills registry search may help you out. A wills notice will tell you where the will-maker planned to keep the original will. The will might have been moved from the location listed in the wills notice.  


==What about stocks and bonds?==
You will need to give a copy of the '''certificate of wills search''' and any wills notices to the probate registry. It’s important to note that not all wills are registered with Vital Statistics. For the Vital Statistics Agency office near you, call 1-888-876-1633 or check the Agency’s website at [http://gov.bc.ca/vitalstatistics gov.bc.ca/vitalstatistics].
If the estate includes securities, such as stocks and bonds, you may have to apply for probate in order to transfer them. You should check with the financial institution or transfer agent involved for each security in the estate because they’ll have different requirements.


==Also deal with any pensions the deceased had==
===Confirm you’re named as executor===
If the deceased paid into the Canada Pension Plan, immediately apply to your local CPP office to tell them of the death and obtain any death, survivor or orphan benefits. Most funeral directors can provide you with information and forms regarding CPP death benefits. You should also check with the deceased person's employer about any benefits available there. If the deceased was receiving an old age security pension or other pensions, you also need to tell those pension offices of the death. Note that any CPP or old age security cheques for the month after the month in which the person died must be returned uncashed.
Once you’ve confirmed you have the most recent will, you’ll need to confirm you’re named as executor. You need to get the original will to check this. If the will is not at the will-maker’s home, it may be in a safety deposit box or at the office of the lawyer who drafted the will.  


==Certain income tax returns must be filed, and income tax may have to be paid==
To look in a '''safety deposit box''', phone the bank and make an appointment. Take the key to the safety deposit box, an original death certificate, and your own identification. If you don’t have the key, the bank can have the lock drilled open. If the will is there and names you as executor, the bank will let you take it. The bank will not let you take the contents of the safety deposit box until you give them a copy of the grant of probate (explained shortly). You and a bank employee will list the contents of the safety deposit box. You need to keep a copy of that list.
You need to file tax returns for any years for which the deceased didn’t file a return. If the estate made any income after the date of death (such as rental income or interest on bank accounts), then tax returns will have to be filed for the estate for each year after death, until the estate is wound up or paid out. The estate must pay taxes and obtain a Clearance Certificate from Revenue Canada before the estate can be distributed to the beneficiaries. This certificate confirms that all income taxes or fees of the estate are paid. This is an important step because the tax department can potentially impose taxes that you don’t know about.


==Now you can pay the estate’s debts==
===Consider hiring a lawyer===
Depending on the circumstances, you may want to advertise for possible creditors so you can make sure all legitimate debts are paid. This is to protect yourself against creditor claims that arise after you distribute the estate. As the executor, you could be personally liable if you don’t pay the deceased’s debts, includig any taxes owed, before you distribute the estate. You should talk to a lawyer about this.
If you agree to be the executor, consider hiring a lawyer to do the paperwork and advise you of your duties. If you do, the lawyer’s fees will be paid from the estate’s assets. Ask the lawyer how the legal fees will be calculated: a percentage of the estate or an hourly fee. But because unexpected matters often arise in estates, it may not be possible to get an exact estimate of fees. It’s a good idea to hire a lawyer for any estate involving the distribution of assets through a will, where a grant of probate is required. For most estates, it’s also a good idea to also hire an accountant to help with the several tax returns that need to be filed. Proper filing of returns and payment of taxes is one of the executor’s responsibilities.


==Be aware of the ''Wills Variation Act''==
===Make funeral arrangements===
The Wills Variation Act allows any child or spouse of the deceased to apply to the court to vary or change the terms of the will. This Act has a six-month deadline (starting from the granting of probate). You should wait for six months to distribute the assets or obtain releases from each potential claimant. Remember that you are responsible if you distribute the assets to the wrong people and could be sued.
The funeral is the executor’s responsibility, although you should consider the wishes of the deceased and their relatives. The funeral home will ordinarily order you copies of the death certificate. You may take the funeral bills to the bank where the deceased kept an account. If there’s enough money in the account, the bank may give you a bank draft from that account to pay the expenses.


==Get tax clearance==
===Cancel charge cards and protect the estate===
It’s wise to obtain a tax clearance certificate from the Canada Revenue Agency. This certificate confirms that all income taxes or fees of the estate are paid. This is an important step because the tax department can potentially impose taxes that you don’t know about.
Cancel all the deceased’s charge accounts and subscriptions. Also, ensure the estate is protected. Make sure valuables are safe and that sufficient insurance is in place. If the deceased lived alone, immediately change the locks on their home and put anything valuable into storage. Most insurance policies cancel automatically if a home is vacant for more than 30 days, so ask the insurance agent about a “vacancy permit”.


===Finally, you’re ready to distribute the estate to the beneficiaries==
===Deal with any pensions===
But before distributing the assets as directed in the will, you should submit a full accounting of the estate’s financial activities and obtain a release from each beneficiary. Your accounting will usually include a claim for reimbursement of expenses you’ve paid yourself. You’ll have to decide if you also want to claim a fee for acting as executor. This fee can be up to 5% of the estate and is taxable income. If you want to claim a fee, the amount you claim should be included in the accounting that you send to the beneficiaries.
If the deceased paid into the Canada Pension Plan, immediately apply to the local Canada Pension Plan office to inform them of the death and obtain any death, survivor, or orphan benefits. Most funeral directors can give you information and forms on Canada Pension Plan death benefits. You should also check with the deceased’s employer and union about any benefits from their work. If the deceased was receiving an Old Age Security pension or other pensions, you also need to inform those pension offices about the death. Any Canada Pension Plan or Old Age Security cheques for the month after the month in which the person died must be returned uncashed.


==Where can you find more information?==
===File certain income tax returns and pay income tax===
*See the booklet “Being an Executor” produced by the People’s Law School, available online through Clicklaw at [http://www.clicklaw.bc.ca/resource/1022 www.clicklaw.bc.ca/resource/1022].
You must file tax returns for the deceased’s year of death and any years the deceased didn’t file a return for. If the estate made any income after the date of death (such as rental income or interest on bank accounts or gains from selling assets), then tax returns will have to be filed for the estate for each year after death, until the estate is wound up or paid out.
*Also see the BC Ministry of Justice’s website on wills and estates at [http://www.ag.gov.bc.ca/courts/other/wills_estates.htm www.ag.gov.bc.ca/courts/other/wills_estates.htm].


===Get a tax clearance certificate from Canada Revenue Agency===
The estate must pay taxes and obtain a '''tax clearance certificate''' from Canada Revenue Agency before the estate can be distributed to beneficiaries. This certificate confirms that all income taxes and fees of the estate are paid. It’s important. Without it, the tax office can impose taxes that you don’t know about.


[updated April 2014]
===Pay the estate’s debts===
Depending on the circumstances, you may want to advertise for possible creditors, so you can make sure all legitimate debts are paid. This is to protect yourself against creditor claims that arise after you distribute the estate. 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. You should talk to a lawyer about this.


==Apply for probate (if required)==


----
===You need to notify certain people of an application for probate===
----
The [http://canlii.ca/t/8lld Supreme Court Civil Rules] and the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec121_smooth Wills, Estates and Succession Act]'' require that certain people must be given written notice of the executor’s application for a grant of probate. This notice must be delivered, together with a copy of the will, to (among others) the beneficiaries named in the will, and certain family members who would inherit if there was no will or who are eligible to apply to court to change the will.


===Prepare and submit the necessary probate documents===
The probate documents are submitted to court to get probate. Usually, you must get probate of the will to handle the deceased’s estate. If there are co-executors, all of them can apply for probate together or one executor can apply for probate and reserve the right of the others to apply later.


You’ll also have to pay the '''probate fees''' calculated by the court registry. The deceased’s bank will usually allow you to take these funds from the deceased’s account.
===Wait before distributing the estate===
[http://canlii.ca/t/52x69#sec60 The law] allows any child or spouse of the deceased to apply to the court to vary or change the will. There is a 180-day deadline, starting from the granting of probate, for applications to vary the will, plus 30 days to serve the executor with the claim (that is, give the claim to them). So you should wait at least 210 days from the grant of probate before distributing the assets of the estate. Or get consents and releases from each potential claimant. You are responsible if the assets go to the wrong people — you could be sued.
Our information on [[Challenging a Will (No. 179)|challenging a will (no. 179)]] explains wills variations claims in more detail.
===Pay your expenses and fees and distribute the estate to the beneficiaries===
Before distributing the assets under the will, submit a full accounting of the estate’s financial activities and obtain a release from each beneficiary. If you want to claim a fee, include it in the accounting you send to the beneficiaries. If the executor and beneficiaries can’t agree on a fair fee for the executor, the court will set it.
Unless there is only one beneficiary, such as a spouse or child, you may not want to distribute any part of the estate to beneficiaries until you get the Canada Revenue Agency '''clearance certificate'''. If the whole estate goes to a spouse, and you transfer most of the estate to them before you have the clearance certificate, the spouse will be responsible for any outstanding debts and taxes.
The executor usually has a year (called the “'''executor’s year'''”) to complete the process, but it can take much longer, especially if the assets or liabilities are complicated, trusts are involved, or you cannot find a beneficiary. There is no deadline to distribute the estate.
==Get help==
===With more information===
'''People’s Law School''' has a publication on ''[https://www.peopleslawschool.ca/publications/being-executor Being an Executor]'' for people who have been appointed as executor in a will.
:Web: [https://www.peopleslawschool.ca/ peopleslawschool.ca]
The '''BC government''' website includes information on [http://www2.gov.bc.ca/gov/content/family-social-supports/seniors/financial-legal-matters/wills-and-estate-planning wills and estate planning] and [https://www2.gov.bc.ca/gov/content/life-events/death/wills-estates wills & estates].
:Web: [https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/financial-legal-matters/wills-and-estate-planning gov.bc.ca]
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Revision as of 17:33, 31 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Hugh McLellan, McLellan Herbert in October 2018.

As an executor, you’re in charge of looking after the will-maker’s affairs after they pass away. Before you accept to act as an executor, you should understand an executor’s duties.

Understand your legal rights

The role of an executor

An executor is a person named in a will to deal with the will-maker’s estate after they die. The person who died and wrote the will is called the will-maker (also called the deceased). An executor gathers up the estate assets, pays the debts of the deceased, and divides what remains of the deceased’s estate among the beneficiaries. The beneficiaries are the people named in the will to inherit the estate. There can be more than one executor.

You don’t have to act as executor

If you’ve been appointed as an executor under a will, but aren’t interested in taking on the job, you don’t have to. This is the case only if you haven’t already dealt with any of the estate assets. “Dealing with an asset” may mean paying debts or changing the insurance on a home.

Acting as an executor can be challenging, time-consuming, and stressful. You should agree to be executor only if you can take on this responsibility. And you can’t assign it to anyone else.

Once you begin dealing with the estate assets, you’re legally bound to finish the job

If you start dealing with estate assets, you can be relieved of your responsibility only by a court order. If the executor dies before completing their duties (and there is no alternate executor named in the will who is willing to be executor) then the executor’s executor (named in the executor’s will) becomes the new executor, in most cases.

If you decide to act, you may need to probate the estate

Probate is the process of applying to court for a ruling that a will is legally valid and confirming that an executor is authorized to deal with the estate. An estate consists of any land, house, money, investments, personal items, and other assets that the deceased owned (with some exceptions, explained shortly).

Some estates don’t require probate

Estates that involve a small amount of money (under $25,000) may not need to go through probate. It’s up to the outside parties who hold the deceased’s assets (such as a bank) whether they’ll give the executor those assets without a grant of probate.

Certain assets can be dealt with without probate. Land owned in joint tenancy with another person doesn’t require probate. If the deceased owned land or a home in joint tenancy with another person, you only have to file an application in the Land Title Office along with the death certificate. This will register the land in the name of the surviving joint tenant.

Also, probate is not required for joint bank accounts or vehicles owned jointly. Again, the death certificate is usually sufficient to transfer these to the surviving joint owner.

In addition, registered retirement savings plans and insurance policies, which typically name a beneficiary to receive the proceeds when the owner dies, aren’t considered part of the estate, and therefore don’t require probate. You should give the death certificate to any insurance companies and plan administrators that the deceased had plans with. They’ll want the death certificate before paying money to a beneficiary.

Tip

If the estate includes securities, such as stocks and bonds, you may have to apply for probate to transfer them. You should check with the financial institution or transfer agent for each security in the estate because they’ll have different requirements.

There are some expenses and fees you can claim

You can be paid pack for expenses you paid out of your own pocket while serving as executor. You’ll also have to decide if you also want to claim a fee for acting as executor. This fee can be up to 5% of the estate (under the Trustee Act) and is taxable income to you. If you want to claim a fee, include it in the accounting that you send to the beneficiaries. If the executor and beneficiaries can’t agree on a fair fee for the executor, the court will set it.

Deal with the estate

Confirm you have the most recent will

People can make multiple wills over their lifetime. You will need to confirm that the will you have is the most recent one. You need to get the original will to check this.

The will-maker or their lawyer may have registered a wills notice with BC’s Vital Statistics Agency. You should do a search of the wills registry of Vital Statistics to ensure you are dealing with the most recent last will. A wills notice will tell you the dates of any wills the will-maker registered with the wills registry.

If you need to find the original will, a wills registry search may help you out. A wills notice will tell you where the will-maker planned to keep the original will. The will might have been moved from the location listed in the wills notice.

You will need to give a copy of the certificate of wills search and any wills notices to the probate registry. It’s important to note that not all wills are registered with Vital Statistics. For the Vital Statistics Agency office near you, call 1-888-876-1633 or check the Agency’s website at gov.bc.ca/vitalstatistics.

Confirm you’re named as executor

Once you’ve confirmed you have the most recent will, you’ll need to confirm you’re named as executor. You need to get the original will to check this. If the will is not at the will-maker’s home, it may be in a safety deposit box or at the office of the lawyer who drafted the will.

To look in a safety deposit box, phone the bank and make an appointment. Take the key to the safety deposit box, an original death certificate, and your own identification. If you don’t have the key, the bank can have the lock drilled open. If the will is there and names you as executor, the bank will let you take it. The bank will not let you take the contents of the safety deposit box until you give them a copy of the grant of probate (explained shortly). You and a bank employee will list the contents of the safety deposit box. You need to keep a copy of that list.

Consider hiring a lawyer

If you agree to be the executor, consider hiring a lawyer to do the paperwork and advise you of your duties. If you do, the lawyer’s fees will be paid from the estate’s assets. Ask the lawyer how the legal fees will be calculated: a percentage of the estate or an hourly fee. But because unexpected matters often arise in estates, it may not be possible to get an exact estimate of fees. It’s a good idea to hire a lawyer for any estate involving the distribution of assets through a will, where a grant of probate is required. For most estates, it’s also a good idea to also hire an accountant to help with the several tax returns that need to be filed. Proper filing of returns and payment of taxes is one of the executor’s responsibilities.

Make funeral arrangements

The funeral is the executor’s responsibility, although you should consider the wishes of the deceased and their relatives. The funeral home will ordinarily order you copies of the death certificate. You may take the funeral bills to the bank where the deceased kept an account. If there’s enough money in the account, the bank may give you a bank draft from that account to pay the expenses.

Cancel charge cards and protect the estate

Cancel all the deceased’s charge accounts and subscriptions. Also, ensure the estate is protected. Make sure valuables are safe and that sufficient insurance is in place. If the deceased lived alone, immediately change the locks on their home and put anything valuable into storage. Most insurance policies cancel automatically if a home is vacant for more than 30 days, so ask the insurance agent about a “vacancy permit”.

Deal with any pensions

If the deceased paid into the Canada Pension Plan, immediately apply to the local Canada Pension Plan office to inform them of the death and obtain any death, survivor, or orphan benefits. Most funeral directors can give you information and forms on Canada Pension Plan death benefits. You should also check with the deceased’s employer and union about any benefits from their work. If the deceased was receiving an Old Age Security pension or other pensions, you also need to inform those pension offices about the death. Any Canada Pension Plan or Old Age Security cheques for the month after the month in which the person died must be returned uncashed.

File certain income tax returns and pay income tax

You must file tax returns for the deceased’s year of death and any years the deceased didn’t file a return for. If the estate made any income after the date of death (such as rental income or interest on bank accounts or gains from selling assets), then tax returns will have to be filed for the estate for each year after death, until the estate is wound up or paid out.

Get a tax clearance certificate from Canada Revenue Agency

The estate must pay taxes and obtain a tax clearance certificate from Canada Revenue Agency before the estate can be distributed to beneficiaries. This certificate confirms that all income taxes and fees of the estate are paid. It’s important. Without it, the tax office can impose taxes that you don’t know about.

Pay the estate’s debts

Depending on the circumstances, you may want to advertise for possible creditors, so you can make sure all legitimate debts are paid. This is to protect yourself against creditor claims that arise after you distribute the estate. 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. You should talk to a lawyer about this.

Apply for probate (if required)

You need to notify certain people of an application for probate

The Supreme Court Civil Rules and the Wills, Estates and Succession Act require that certain people must be given written notice of the executor’s application for a grant of probate. This notice must be delivered, together with a copy of the will, to (among others) the beneficiaries named in the will, and certain family members who would inherit if there was no will or who are eligible to apply to court to change the will.

Prepare and submit the necessary probate documents

The probate documents are submitted to court to get probate. Usually, you must get probate of the will to handle the deceased’s estate. If there are co-executors, all of them can apply for probate together or one executor can apply for probate and reserve the right of the others to apply later.

You’ll also have to pay the probate fees calculated by the court registry. The deceased’s bank will usually allow you to take these funds from the deceased’s account.

Wait before distributing the estate

The law allows any child or spouse of the deceased to apply to the court to vary or change the will. There is a 180-day deadline, starting from the granting of probate, for applications to vary the will, plus 30 days to serve the executor with the claim (that is, give the claim to them). So you should wait at least 210 days from the grant of probate before distributing the assets of the estate. Or get consents and releases from each potential claimant. You are responsible if the assets go to the wrong people — you could be sued.

Our information on challenging a will (no. 179) explains wills variations claims in more detail.

Pay your expenses and fees and distribute the estate to the beneficiaries

Before distributing the assets under the will, submit a full accounting of the estate’s financial activities and obtain a release from each beneficiary. If you want to claim a fee, include it in the accounting you send to the beneficiaries. If the executor and beneficiaries can’t agree on a fair fee for the executor, the court will set it.

Unless there is only one beneficiary, such as a spouse or child, you may not want to distribute any part of the estate to beneficiaries until you get the Canada Revenue Agency clearance certificate. If the whole estate goes to a spouse, and you transfer most of the estate to them before you have the clearance certificate, the spouse will be responsible for any outstanding debts and taxes.

The executor usually has a year (called the “executor’s year”) to complete the process, but it can take much longer, especially if the assets or liabilities are complicated, trusts are involved, or you cannot find a beneficiary. There is no deadline to distribute the estate.

Get help

With more information

People’s Law School has a publication on Being an Executor for people who have been appointed as executor in a will.

Web: peopleslawschool.ca

The BC government website includes information on wills and estate planning and wills & estates.

Web: gov.bc.ca
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