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Executor Responsibilities

At LegalWills.ca we have removed the obstacles to writing a Last Will and Testament.  It is convenient, low cost, and simple.  The MyWill™ and MyExpatWill™ services step you through a series of questions in a "wizard" format.  All questions are written in plain language, so you don't have to be a legal expert to create your own Will.  You simply answer the questions, complete the details, and we automatically and instantly format a document that forms the basis of a legal Will, custom-made for your local jurisdiction.

If you are the executor of the Will of a member here at LegalWills.ca, you probably have a lot of questions about your responsibilities. Here you will find a good summary of the steps that must be followed, as well as some additional information about your responsibilities.

What is an "executor"?

An "executor" is a personal representative who is responsible for distributing the estate (property, assets, possessions) of an individual according to the wishes outlined in their Will.

At a high level, what does an executor actually have to do?

There are a number of important responsibilities of an executor, which can be summarized as follows:

  • The executor needs to have access to the Will. (This is one of the purposes of being a LegalWills.ca "Keyholder®" for a member's MyWill™ and MyExpatWill™ services).
  • The executor must review the Will, make sure that nobody else has access to any of the property, and notify the next of kin and beneficiaries.
  • The Will must be "probated". That is, in order to administer the estate the executor must be able to prove to the world that he or she has the legal authority to do so.
  • The executor is, by default, expected to make funeral arrangements and pay for funeral expenses out of the estate. (This is one of the purposes of being a LegalWills.ca "Keyholder®" for a member's MyFuneral™ service, so that their funeral wishes can be understood and respected.)
  • The executor must make an inventory of the property in the estate and the value of the property. (The MyLifeLocker™ service allows convenient storage of this property and other personal information that can be passed on to the executor when it is required.)
  • The executor has the responsibility of protecting the property of the estate. They must ensure that all valuables are kept safe and that the property is fully insured.
  • Until the estate is distributed, the executor must keep the money and investments in the estate properly invested. They must choose low-risk investments, as beneficiaries could sue the executor for making bad investments and reducing the value of the estate before it is given to them.
  • Once the estate has paid all the debts and taxes, the executor is able to distribute the property to the beneficiaries.
  • Finally, the executor must provide detailed accounts to the beneficiaries including a detailed list of everything that was received and paid out by the estate.

Why was I selected as an executor?

Individuals often choose a family member or close friend to be the executor of their Will. Most commonly it is a spouse or a child. An executor is usually a person who the individual trusts completely, is diligent and acts with integrity.

As an executor, can I also be a beneficiary in the Will?

Yes. The executor has a legal responsibility to treat all beneficiaries fairly under the directions given in the Will. There is nothing preventing an executor from being a beneficiary of the estate, as long as they are not faced with a conflict of interest, or there is a danger that they may not treat all beneficiaries equally. In fact, for a simple distribution of the estate, where most of the estate is passing to a single beneficiary, it is common for that beneficiary to also be named as the executor of the Will.

What if I am unwilling or unable to serve as an executor?

If the Will identifies an alternate executor, then they may be able to take your place. If no alternate has been identified, then someone can be appointed by the courts to distribute the estate.

Does the executor get paid?

The executor is typically entitled to a fee as approved by the court prior to the payment. The level of payment is based on the size and complexity of the estate, as well as the amount of time and effort demanded of the executor.

What does the Will actually contain?

A Will has the following general structure:

  • It identifies the person making the Will, otherwise known as the "testator".
  • It revokes (cancels) all previous Wills, to make it clear that this Will replaces any earlier Wills may have been made.
  • It names the personal representative, called the "executor", for the Will.
  • It leaves all of the property to the executor in trust. The executor, as the trustee of the estate, is given ownership of all of the property in the estate, but must distribute the property according to the instructions in the Will.
  • It instructs the executor to pay all valid debts, expenses, claims and taxes on the estate.
  • It tells the executor to give the beneficiaries whatever is left in the estate after the debts, expenses, claims and taxes have been paid.
  • It gives the executor certain legal and financial powers to manage the estate, including the power to keep or sell property in the estate, to invest cash, and to borrow money.
  • It names one or more people who should take custody of any minor children.

How do I obtain a copy of the Will?

As the executor of the Will, the member may have told you in advance where the signed, legal copy of their Will is located.

If you are the LegalWills.ca "Keyholder®" for the member's MyFuneral™ service, then you may be able to view their funeral wishes, which includes a section on the location of their Will.  You do this by logging in as a Keyholder® using the Keyholder® ID supplied by the member, and selecting the MyFuneral™ service from the main menu in order to unlock it. After a number of hours or days have passed, as specified by the member, their funeral wishes can be viewed or printed by you.  One of the first sections of the document describes the location of the signed, legal copy of the member's Will.  If you do not see the MyFuneral™ service listed in the main menu, then the member has not provided you with the power to unlock or view their funeral wishes.

If you are the LegalWills.ca "Keyholder®" for a member's MyWill™ service, then you will be able to view and print a copy of the member's Will.  You do this by logging in as a Keyholder® using the Keyholder® ID supplied by the member, and selecting the MyWill™ service from the main menu in order to unlock it. After a number of hours or days have passed, as specified by the member, the Will can be viewed or printed by you.  If you do not see the MyWill™ service listed in the main menu, then the member has not provided you with the power to unlock or view their Will.

If you are the LegalWills.ca "Keyholder®" for a member's MyExpatWill™ service, then you will be able to view and print a copy of the member's Expatriate Will (which covers assets held in a foreign country).  You do this by logging in as a Keyholder® using the Keyholder® ID supplied by the member, and selecting the MyExpatWill™ service from the main menu in order to unlock it. After a number of hours or days have passed, as specified by the member, the Expatriate Will can be viewed or printed by you.  If you do not see the MyExpatWill™ service listed in the main menu, then the member has not provided you with the power to unlock or view their Expatriate Will.

More details about obtaining the most recent copy of the Will are provided below.

What is "probate"?

Probate is the process by which a Will is legally approved by the courts. It also refers to the required documentation and includes the legal confirmation of the appointment of the executor of the Will.

Not all Wills have to be probated. It depends on various factors such as the complexity of the estate, the amount and nature of assets, the number and nature of beneficiaries, etc. However, in practice most estates end up going through the probate process.

Executors are encouraged to have the Will probated, because without this legal confirmation process, many people could become concerned that the Will is invalid, or possibly signed under duress, or that there may be a more recent Will. If there is any possibility that the legality of the Will is in question, or that there could be contention over any statements contained within the Will, then the Will should be probated.

Exactly what steps must an executor perform?

The executor of a Will must perform the following series of tasks:

  • The first obligation of the executor is to locate and read the original of the most recent Will of the deceased. Hopefully, the "testator" (the individual who wrote the Will) has previously informed the executor or their family where their Will and other important papers are kept. If not, then the executor must search all likely places for a valid Will. If the Will is kept in a safety deposit box, then the executor will have to take a key, the Death Certificate and personal identification in order to access the box. The box can be forced open if they do not have a key. The bank will then draw up an inventory of the contents, and the Will will be released if the executor can demonstrate that they are indeed the person with executor responsibilities for the Will.
  • The executor should apply for the Death Certificate of the testator, which can usually be obtained from the Funeral Home director. This usually takes one to two weeks to receive.
  • The executor has the right to determine how to dispose of the deceased's body. Any funeral wishes expressed by the deceased are not legally binding, although in practical terms personal wishes are usually respected. If the deceased has taken time to express their personal wishes through a service such as the MyFuneral™ service at LegalWills.ca, it will save the family and the executor a great deal of anxiety and grief.
  • The executor must notify everybody who has an interest in the estate and what, if any, is their entitlement described in the Will. If the Will, or the authority of the executor is challenged, then the executor may have to provide documentary evidence that they have complied with any legal requirements.
  • A list of assets and liabilities must be drawn up, including their value at the date of death.
  • The executor must secure all assets, either by taking them into his or her possession, or by taking out a full insurance policy.
  • All prospective creditors must be given an opportunity to stake a claim on the estate. The executor must advertise for anybody who may have a claim against the estate. Creditors with a valid claim can recover their debt at any time, even after the estate has been distributed to the beneficiaries.
  • The next step is to apply to probate the Will, so that the assets can be dealt with legally. This may require legal assistance.
  • The executor is responsible for filing taxes on behalf of the deceased, including income taxes and death taxes.
  • Once the executor has obtained legal authority to distribute the estate, they must pay all outstanding debts and expenses, including funeral expenses and all taxes.
  • Once all debts have been paid, the estate can be distributed to the beneficiaries starting with specific bequests to individuals. If the Will provides for the setting up of Trusts, then the executor is responsible for making these arrangements. Once all specific bequests have been distributed, the residue is distributed.
  • The executor is accountable to the beneficiaries for the assets of the deceased. It is therefore vital that accurate records are maintained when dealing with all debts, expenses, taxes and the distribution of the estate.
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