Your Duties As Executor (No. 178)
|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.
- 1 Understand your legal rights
- 1.1 The role of an executor
- 1.2 You don’t have to act as executor
- 1.3 Once you begin dealing with the estate assets, you’re legally bound to finish the job
- 1.4 If you decide to act, you may need to probate the estate
- 1.5 Some estates don’t require probate
- 1.6 There are some expenses and fees you can claim
- 2 Deal with the estate
- 2.1 Confirm you have the most recent will
- 2.2 Confirm you’re named as executor
- 2.3 Consider hiring a lawyer
- 2.4 Make funeral arrangements
- 2.5 Cancel charge cards and protect the estate
- 2.6 Deal with any pensions
- 2.7 File certain income tax returns and pay income tax
- 2.8 Get a tax clearance certificate from Canada Revenue Agency
- 2.9 Pay the estate’s debts
- 3 Apply for probate (if required)
- 4 Get help
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.
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.
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
- Web: gov.bc.ca
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