Your Executor – the most important appointment of your life

A key question that many people struggle with is: Who will be your executor in your Last Will and Testament?

Okay, who or what exactly is your Executor?

First of all, it is important to know the definition of an executor and what role they play in your last will and testament.

It is your executor’s responsibility to handle your last wishes. The executor is in charge of handling the estate and distributing property and possessions according to your instructions. It is also their duty to settle debts; a required step before your executor can distribute inheritances.

Your Executor

We provide a complete list of Executor responsibilities as part of our services at LegalWills.ca.

Securing your Estate

Your executor must keep your assets safe. You may have heard of terrible episodes of a person dying and the family descending on the estate. It can become a free-for-all where things just start disappearing. “He always told me that I could have this” says the favourite niece as she walks out of the door with the Andy Warhol pencil sketch.

This is stealing and illegal. And it is your executor’s responsibility to make sure it doesn’t happen.

Your executor should understand the particulars of each asset. He or she needs to decide whether individual assets will be kept and given to beneficiaries named in the Will. Or whether an asset will be sold and the proceeds divided between beneficiaries.

Your executor should also locate information about real estate deeds, important tax documents, and mortgages, collect the money owed to you, and collect all household items and personal property to hold it for safekeeping until they know what else they must do with it.

Often the first step in securing the estate is changing locks on doors.

Understanding the beneficiaries

Your executor must be aware of what individuals or organizations will inherit the property and possessions given to them in the Will; they must contact the parties mentioned in the Will and make sure that they receive their fair share.

Your executor must also contact creditors to let them know of your death; cancel your bank, credit, and debit card accounts; and contact any other office and business at with which you may have had an account at the time of your death. Including of course “digital assets“.

Administering the estate

As well as canceling certain payments, your executor needs to be aware that they may also need to continue payments, such as home loans, car payments, or other recurrent expenses. Executors should also consider setting up a bank account for the estate, which will not only help to keep certain funds separate, but it will also make the task of paying off the various debts and payments much easier.

Your executor must also find out if it is necessary to probate the will in court—that is, having the court rule on the validity of the Will. In practice, almost all Wills in Canada need to be probated, the only exception is when all assets are passing to a joint owner.

The probate process grants your Executor the authority to act as your estate administrator. They are given a court document called a “grant of administration” . It is this document that the banks need to see to release the contents of an account.

How to choose your Executor?

Now that we know what an executor is, it is now time to answer the question of “how to choose your executor”. Many people entrust the role of executor to the people they trust the most in their lives—spouses, parents or children, close friends, or immediate family members.

We should mention that more than one executor can be chosen as “co-executors”. The decision to choose multiple executors is one that people make for many reasons. The first, and most common, is that selecting more than one executor allows you to select a person you trust and another with more experience in judicial or financial matters.

Another reason that someone might take the precaution of choosing a co-executor is so that if one of the selected executors dies before they can carry out their duties, then the second executor can handle it all. Even if you do not name co-executors, the Will service at LegalWills.ca requires you to name an “alternate” executor. A backup.

When selecting your executor, it is important that you pick someone who is trustworthy and fiscally-responsible. Also, you must remember that you are required, to name an executor, as someone must collect the assets and protect the estate. Your executor does not have to fulfill their role on their own. For example, if the executor is a family member who has little to no experience in matters of the law, they do have the option of hiring a professional to take care of the assets.

Professional Executors

Many feel that it is important to choose an executor who is not an immediate family member. It is possible that if the Executor is also a beneficiary, it can create a conflict of interest.  However, legally there is nothing preventing this. It is actually very common to name one’s spouse as the executor and main beneficiary.

Keep in mind that family members may be experiencing emotional trauma associated with your death. Certainly a spouse can be well positioned to act as an estate administrator, but would you really want all of your creditors calling them for updates on the progress of the estate?

Another approach to remember when selecting an executor is that you can hire a professional, such as a lawyer or bank. However, we generally steer people away from this approach unless you know that there will be a challenge to the Will. If you feel that that certain legal issues may crop up in the distribution of the estate, it may be your best choice. But otherwise, it is just an expensive option with questionable value. Most professional Executors charge not only a percentage of your estate, but also an hourly fee on top. This can amount to tens of thousands of dollars, for not much work.

What should I look for when choosing an executor? This is another question that many people might ask. The most important quality to look for first is capability. This will ensure that whomever is hired to handle the job will be able to carry out each requirement. This makes the process smooth and easier on the loved ones left behind. The executor or executors need to have experience in dealing with bills (such as medical bills), paperwork, legal forms/papers, and money.

Powers granted to the Executor

Certain powers can be granted to the executor. The powers include; the power to borrow money, the power to buy and sell real estate, and the power to hire professional assistance.

Specifically, a LegalWills.ca document includes the following clauses.

  • Authority to sell or not sell assets in the estate.
  • Power to make investments on behalf of the estate
  • Discretion to evaluate the value of assets and distribute them according to their best judgement.
  • Authority to sell real estate, and close or maintain any mortgages.
  • Capability to settle any claims made on the estate.
  • Flexibility to hire professional advisors and pay for them out of the estate.

Now write your Will

Now that you know what an executor is, what it is an executor does, and how to choose an executor to handle your will, the task of choosing an executor is up to you. The decision is one that could possibly affect your children and loved ones. So it is very important to choose the right executor to best suit the carrying out of your last wishes.

You can start writing your Will today at LegalWills.ca. You don’t have to complete your Will in one sitting. When you get to the page asking for your Executor, save your work. Talk to some family members and see what they think. Then return to the service and continue entering your wishes. But make sure you write your Will.

 

6 thoughts on “Your Executor – the most important appointment of your life

  1. My husband who committed suicide in 2013 changed his will 6 days before he ended his own life. He was extremely vindictive in writing me out of the will but so much so that he left out his own children 3 biological and 1 stepson who he treated and loved as his own. In his will he left everything to his father by leaving it blank and designating the residual of the estate to his father. He left a life insurance policy to his father also changed 6 days before he died in where I was originally the beneficiary (since 2007). My husband confided that he wanted that money left to the kids in an email in approx a month before his death but didn’t know how to leave it to more than one person. All of his children were minors at the time of this death.

  2. Ian Collinson Ian Collinson says:

    If my wife and I die together and I have a child with another women . I have primary residence for my son 9yrs old. Who would my son go to? If it matters I also have a kid (1 yr old)with my current wife.

    • legalwills legalwills says:

      Hi Ian. Guardianship is appointed by the courts. Generally though, if the child’s mother is willing and able to care for your son, then the child would go to her. If a judge determined that this was not the case (that the mother was not capable of caring for the child), then they would turn to any appointment made in your Will. Hopefully some people will come forward and offer themselves as guardians, and the judge will make the best appointment that they can. But any guardianship named in your Will would be a significant factor in this decision.

  3. Beneficiary in the dark Beneficiary in the dark says:

    Please provide information on the rights of beneficiary’s when an executor is not acting in good faith, at all.

    • legalwills legalwills says:

      Thanks for the question…it’s weird, we’ve received three questions on this topic just today. While we don’t think that people always need to hire a legal professional to write a Will, you do need to seek professional help for situations like this. An Executor cannot be secretive about the contents of the Will. They must notify all interested parties, and provide detailed accounts and audits of the estate. They must communicate what has been gathered up by way of assets, and how those assets are to be distributed. This is not a secret process. If you suspect that an Executor is not doing things correctly, or that they may be helping themselves to some of the assets, then you need legal advice. Find an estate planning lawyer in your area to represent you. The costs of getting professional help will be easily recovered by holding the Executor accountable for their actions.

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