When creating a will, it's important to choose the right executor, as they are responsible for ensuring that the wishes of the testator are carried out. A will can have multiple executors, who may be named jointly or as replacement executors. The testator should consider who would be the best fit for the role of executor, taking into account factors such as their age, relationship to the testator and beneficiaries.
What does an Executor do?
- Locate the will - This can sometimes be a challenge, as the document may be stored at a lawyer's office, in a safety deposit box, or even in a person's home. It's important for both the testator and the executor to know the location of the will to ensure a smooth probate process. While British Columbia and Quebec have official provincial will registries, these are voluntary and not mandatory when drafting a will. Toronto-based NoticeConnect has developed the Canada Will Registry, which allows individuals to register their will and its location, but this is also voluntary.
- Make a list of the assets and liabilities of the deceased and apply for a grant of probate from the court - Probate provides the executor with the authority to deal with the estate. Probate may not be necessary, but it's generally required when the assets include real estate or accounts at financial institutions.
- Begin to distribute the estate - Once an executor has the authority to settle the estate, they can begin notifying financial institutions, selling assets, and paying debts, taxes, and other expenses.
Important Notes
The role of an executor can be complicated and may involve tax, legal, and other financial decisions and may also be contentious, depending on family dynamics.
- An executor is not required to act and can decline the role or even step down from it after they've already started
- The testator should ask their intended executor if they are willing to be named and also include at least one replacement executor in their will
- An executor may face personal liability for errors or omissions made when settling an estate, but they can purchase liability insurance to protect themselves and cover legal fees or orders of restitution from a court
- They can also seek assistance from a trusted company, lawyer, or other professional to help them with the duties related to settling the estate
