The Role of an Executor: Who are They and What Do They Do?
Your Will needs an executor, which is the person (or persons) who you wish to carry out the administration of your Will when you pass on. The executor must be clearly laid out in proper form and alternate executors may be named too.
Choose an Executor that you can Trust
The executor should be a person who you trust and who you believe will respect the wishes you outline. It is ideal but not a requirement for the person to have a good general understanding of law and accounting, or one who is generally patient with complex paperwork. The executor may also be a beneficiary of the Will (e.g. one of your children) if you believe that his or her interest in the Will would not affect his or her capacity to act fairly and in accordance with its terms. If the person you have in mind has too little time to devote, he or she can always seek assistance from a legal and tax professional to get the work needed done properly. An executor who lives in the same province as you, or at least in Canada, is ideal.
If you have any reason to believe that there will be tensions among beneficiaries of the Will, instead of selecting your children to be executors, it may be wise to pick someone else. It is also possible to name a trust company or legal or accounting professional to administer your estate rather than a friend or relative. If you are at all unsure whom to choose, given your individual circumstances, it is wise to consult with a wills and estates lawyer.
For example, in Unger Estate (Re), 2014 ABQB 230 (CanLII), the Respondent was a child of the deceased, named as a fourth executor of the estate with her siblings. The Respondent, Ms. Unger, attempted to wrongly take ownership of certain assets held in joint name, to which she was not entitled. Ms. Unger wrongly understood her entitlements at law, thinking her father made a gratuitous inter vivos gift to her before he died. Ms. Unger did not provide evidence to rebut the claim of a resulting trust and she was removed as executor, with costs ordered against her.
Handling Debts and Debtors
Though debts can fluctuate over time, you should always include a general provision in your Will about your debt and how they should be settled.
An executor can unfortunately become personally liable if he or she fails to account for the estate’s debts before distributing the assets. While the executor should know to ensure that all debts are accounted for, this is much easier when you clearly state what your sources of debt are. If the estate is owed money by any person, including any beneficiary, this should also be noted. That way, the executor can make better efforts to collect from debtors prior to completing the administration of the estate.
In Bibby Estate (Re), 2009 ABQB 321 (CanLII), beneficiaries of an estate commenced litigation against the executor for failing to diligently uncover and/or realize all assets of the estate, and to deal with debtors and creditors of the estate in the appropriate course. It is ideal to avoid ending up in this scenario, if possible, by keeping your Will current, with your latest assets and debts clearly defined.
Wills & Estates Lawyers in Sherwood Park
If you have more questions about how to select your executor and what you should expect from them, call the Wills and Estates lawyers at Spratlin Law Office in Sherwood Park, Alberta. We can help answer any questions you may have about preparing your