Who Can Be the Executor of a Will?

Who can be the executor of a Will? The simple answer is: 1) anyone over the age of majority, 2) who has the mental capacity to manage your estate and, 3) who you trust unconditionally, and without reservation, to carry out the instructions you wrote into your Last Will and Testament. Note that an executor should be someone who you trust absolutely and unconditionally to carry out your wishes after you are gone. An unfortunate reality is that some executors cannot resist the temptation to put their hands in the cookie jar so to speak. So, in naming an executor, you should do your absolute best to ensure that you select the right person for the job.

Have That Discussion

In preparing Wills for people, I have advised them to speak to the person, or people, they are contemplating as the executors of their estates. Depending on the size of the estate, administration of an estate can be onerous and time consuming. I have found that many people who had been appointed executors did not wish to assume the responsibility. Accordingly, it is better to know that before the Will is prepared. A person unwilling to assume the duties required of an executor can “Renounce” if they do not want to act.

You can theoretically appoint as many people as you want to be your executors. However, when too many people are appointed it can be difficult to reach a consensus as to how a particular set of circumstances ought to be handled. In addition, it is not a good idea to appoint two people. Executors must act in harmony meaning that there must be agreement on every decision that is required to be made. If there is disagreement court action will be required to break the deadlock.

The person(s) you choose should know where your original Will is kept and should have access to it. I usually advised clients to keep their Will in a safety deposit box at a bank or in a fire-proof safe in their home. It does not make sense to have your Will kept in a safety deposit box at a bank if your executor doesn’t know that. It is good to have your executor introduced to the bank manager so that, when the time comes, your executor will not encounter difficulties accessing your safety deposit box.

Or, if the executor doesn’t have an access key to your safety deposit box and is someone unknown to bank staff, it is unlikely that a bank manager will allow access to the safety deposit box especially if the executor does not have a copy of the Will in hand.

Finally, your executor should be someone local. As you will see when we look at the duties of an executor, someone who lives in another state, for example, will not want to assume the business of managing your estate after you are gone. It will just be too inconvenient and, perhaps, expensive. An executor in another state may not be willing to act and again, in that case, may renounce leaving your estate without someone to administer the provisions of your Will.

A Trust Company Can Be An Executor

Trust companies are sometimes appointed as executors of an estate if the testator (the person who owns the estate and who wrote the Will) cannot think of anyone who could act as executor. Trust companies charge fees for their services so a trust company should only be considered as executor if the estate is substantial and can absorb those fees.

Duties of an Executor

It is not possible to list all of the duties an executor might be called upon to perform. An executor will have to track down bank accounts and other valuable assets such as stock portfolios or mutual fund accounts, insurance policies, annuity contracts and pension fund accounts.

Utility accounts must be cancelled and outstanding bills must be paid. Government and insurance benefits must be claimed and houses or condos must be cleaned up and prepared for sale. Meetings with real estate agents, stock brokers, bank managers and insurance company representatives will have to be arranged.

If you are the named executor you should take immediate steps to secure the assets of the estate. Sadly, there are many cases where relatives have raided a household immediately upon a homeowner’s passing thereby depriving those entitled under the Will of the benefit of the assets that have been stolen. Failing to act immediately in such cases can mean that you are personally responsible for the losses.

Executors Are Fiduciaries

The relationship of the executor(s) with respect to the estate is characterized as fiduciary. As such, the nature of the relationship requires that the executor act with the utmost in loyalty and good faith in the administration of the estate. Executors can be held personally liable for any losses incurred by an estate due to an executors breach of these legal obligations, malfeasance or negligence.

It is, therefore, wise for an executor to get some legal advice before starting the administration of an estate. The duties an executor might be required to perform can become very complex if there is real estate in other countries or other off-shore assets or investments. Is such cases, it is often necessary to get legal advice from a lawyer in that country. Sometimes the services of an interpreter are required as well.

Substitute Executors

It is always wise to appoint a substitute if an executor is unwilling or unable to act after you pass on. Accident and illness are an unfortunate reality and, if your executor does not survive you, your estate will not be administered. In that case, the beneficiary or beneficiaries must go to court to have someone appointed.

Accordingly, you should avoid appointing someone who might be older than you are. There is a possibility that such a person might not live as long as you do. So, if possible, someone younger than you are should be considered. Even in this case it is wise to name a substitute if your executor is unwilling or unable to act.

The Will Says That I Am the Executor

An executor must be absolutely sure that they have the Last Will prepared by a deceased person. If the testator prepares a new will after the Will that names you as executor it is the most recent Will that has legal effect. Some people change their Wills regularly. Accordingly, an executor must be absolutely certain that they have the Last Will of a testator. In the Province of Ontario there is a central Wills Registry and it is wise for a testator to file her/his Will in that registry.

However, this is still no guarantee. If the testator has written another Will and has not filed it, the fact that their is a Will on file does not guarantee that there is not another subsequent Will. It is always a good idea to place an ad in a local newspaper asking if anyone knows about a Will the deceased may have made recently.

Conclusion

Entire treatises have been written with respect to executors and the duties they are required to perform. This article is intended as a brief introduction to enable some familiarity with the role of the executor and the duties required in performing that role.

Note that the information presented in this article is intended as education only. It is not intended as legal advice and should not be construed as such or relied upon as such. If you are named as executor in a Will you should immediately consult with a lawyer in your area who can review the Will and advise you as to the steps you should take in light of the specific provisions set out in that Will.

Grant Rayner*

If you are separating from your spouse in the Upper St. John River Valley of New Brunswick, call Langdon Law at 506.497.2560 for a consultation. Offices in Woodstock, Hartland and Florenceville-Bristol to serve you.

*Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick.

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