Being Asked to Be an Executor

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Hsia in March 2019.

Image via www.istockphoto.com

An executor carries out the instructions in a will

An executor is the person named in a will to carry out the instructions in the will. When the person who made the will (the will-maker) dies, their property and possessions form their estate. The executor administers the estate by locating all of the will-maker’s property, paying any debts, the funeral costs and taxes, and then distributing the rest of the estate according to the instructions in the will.

Being an executor can be a demanding job

Acting as an executor can be relatively easy if the estate is simple; for example, if the estate consists of a car, a house, some personal belongings, and a bank account. But the job of executor can become challenging for many reasons.

Your job as an executor may be more difficult if:

• there are many people named in the will to receive gifts of money or property,
• the will-maker has a lot of assets or debts,
• the will-maker owns a business,
• the will includes a trust, or
• the will is challenged by someone who feels they have not received a fair share.

You don’t have to act as executor

If someone asks you to be their executor and you don’t want to do the job, you can say no.

And you still have the option to say no once a will-maker has died, even if you said yes to being executor while they were alive. If you haven’t started dealing with any of the estate assets, you can decline — that is, renounce — your appointment as executor. You can do this by signing a form called a notice of renunciation. This form will need to be filed in court when someone applies for probate or administration.

If two people are named as co-executors, one of the co-executors can turn down the job. The co-executor who has decided not to act will still need to file the notice of renunciation form. Or one executor can apply for probate and the grant of probate can reserve the right of the others to apply later.

If you renounce, and a co-executor is not named in the will:

• The alternate executor can take over. This is someone named in a will in case the executor is unable (or unwilling) to act.
• If there is no alternate named in the will, someone will have to apply to court to become administrator. The process is similar to the process to probate the will. The administrator will need to deal with the estate in accordance with the will.

If you’ve already started dealing with estate assets, you are legally bound to continue

However, if you’ve already started dealing with any estate assets, you’re legally bound to continue until you are discharged of your duties by court order.

Examples of dealing with an asset include paying debts or changing the insurance on a house. Doing these things is considered intermeddling with the estate, and you must continue administering the estate until the court discharges you of your responsibility.

If you decide to act as executor, you can get help

Image via www.istockphoto.com

It takes time, energy, and careful attention to detail to be an executor. Many executors do the work themselves. However, you can get help from friends and family members.

You can also choose to hire a lawyer or an accountant to help you, particularly if the estate is complex in any way. The fees they charge are paid out of the estate, as long as the fees are reasonable.

Many executors hire a lawyer to guide them through the probate process. Typically, executors hire a lawyer to handle any business interests left behind by the will-maker. Most executors hire an accountant to prepare the tax returns; some hire an accountant to prepare the estate accounts.

As executor, you’re legally responsible for the estate

As the executor, it’s your responsibility to make the decisions, watch over everything, and keep accurate records. Even if you get help from others, at the end of the day, you are legally responsible for the estate. If you don’t do the job properly, you could be personally liable.

There are some expenses and fees you can claim

The executor can pay themselves back from the estate for any expenses they paid for while administering the estate. Examples of out-of-pocket expenses are search fees, photocopying, and postage.

An executor can claim a fee for their time and effort. Sometimes the will says what the executor’s fee is. If the will doesn’t set out a fee, the executor may take up to:

• 5% of the gross value of the estate,
• 5% of the income of the estate (money earned by estate property after the will-maker dies, such as rent), and
• 0.4% per year, based on the average value of the estate under management, for a care and management fee.

The amount that the court will allow an executor to claim depends on how much work was involved and whether the executor paid for professional help or did it on their own.

An executor who is named as a beneficiary in the will may claim a fee in addition to what the will gives them as a gift, unless the will says otherwise. Sometimes the will leaves the executor a special gift (such as jewelry, money, or real estate) for doing the job of executor. In such a case, the executor can claim a fee as well, but only if the will says so. The executor may prefer to take a gift rather than a fee because a fee is taxable but a gift under the will is not.

If there is more than one executor, the fee is split, but not always equally — it depends on who does the most work.

Often an executor doesn’t accept a fee. This is common if the executor is a spouse, family member, or close friend of the will-maker.

There can be more than one executor

There may be more than one executor named in a will to act at the same time. If there is, the co-executors must act jointly. Neither is the “lead” executor. The co-executors have to agree on many things, from the selling price of the house to who will get the family photo albums.

If co-executors can’t agree, they can’t deal with the relevant asset. For example, if one executor wants to sell the house and the other disagrees, the house can’t be sold. If co-executors have serious disagreements, they’ll need to resolve the conflict by contacting a lawyer or going to court. If the administration of the estate stalls because the co-executors disagree, the beneficiaries may also go to court and seek removal of the executors for failing to act appropriately.

An executor’s role ends when the court formally discharges them

In general, it can take about one year to complete the work of executor for a straightforward estate. This is commonly referred to as the “executor’s year.”

That said, there is no strict time when the responsibilities of the executor are finished. The executor remains responsible for looking after the estate, even after the estate property has been distributed to the beneficiaries under the will. If assets or debts turn up years later, the executor will still be legally responsible for dealing with them.

An executor needs to go to court to pass their accounts and to be discharged as executor. Their role is only finished once this happens.

If you agree to being someone’s executor

If you agree to act as an executor, make sure you have a current copy of the will. Keep it in a safe place where you can find it easily. And make sure you know where the original will is kept. Ask the will-maker to give you a list of all of their assets and debts. Down the road, your job will be easier if this list is kept up to date.

Being an Executor © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence.