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| | [[File:Being an Executor cover image.png|thumb|275px|right|<span style="font-size:50%;">Image via www.istock.com</span>]]This [[Being an Executor|publication]] from [[People's Law School]] is for people who have been appointed as executor in a will. It covers the steps involved in British Columbia in dealing with an estate after a person dies, including the procedure to probate the will. This edition reflects the [http://canlii.ca/t/8mhj ''Wills, Estates and Succession Act''], which became law in 2014. |
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| ==What is an executor==
| | The information is produced for educational purposes and is not intended as legal advice. If you need advice about a specific legal problem, please contact a legal professional. Some sources of legal help are highlighted in the [[Where to Get Help for Being an Executor|Where to Get Help section]]. |
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| An executor is the person named in a will to carry out the directions contained in the will. The executor is responsible for settling the person’s affairs after death. The person’s estate passes temporarily to the executor.
| | We have tried to use clear language throughout. See the [[Glossary for Being an Executor|Glossary section]] for definitions of key legal terms, which are also bolded in the text. |
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| The executor locates all of the person’s assets, pays the funeral costs, debts and taxes, and then distributes the remaining money and property according to the instructions in the will. The executor is accountable to the beneficiaries. For example, the executor must let the beneficiaries know when he or she is applying for probate, and must keep records and give all beneficiaries a final statement of accounts.
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| ==Being an executor== | | === People's Law School === |
| | | [[People's Law School]] is a non-profit society in British Columbia, passionate about making the law accessible to everyone. We provide free education and information to help people effectively deal with the legal problems of daily life. |
| Being an executor takes time, energy and careful attention to detail. An executor can get help from friends and family members and also from a lawyer or accountant if necessary. However, the executor is the person who is legally responsible. An executor will make the decisions, watch over everything, and keep accurate records.
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| : '''A Senior’s Experience:''' ''I found out after my brother died that he had named me executor. He didn’t ask me first. Although I loved my brother, I didn’t want the job. I was 78 years old. Also, I live in Alberta and he lived in BC. It was going to be too difficult. So I signed a Renunciation of Probate form, and the alternate executor took over.''
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| ===How difficult is it to be an executor?===
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| Your job as an executor may be more difficult if:
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| * there are many beneficiaries,
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| * the person who died owned a business,
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| * the person had investments and debts,
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| * the will includes a trust,
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| * the will is challenged by someone who feels left out of the will.
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| : '''A Daughter’s Experience:''' ''I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t have any trouble except that she left specific amounts of money to the beneficiaries and there wasn’t enough money to go around. When I made my will, I put in percentages instead of actual amounts. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job.''
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| ===Do I have to act as executor?===
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| If someone asks you to be an executor and you don’t want to do the job, you can say no. You can also resign after the person has died. However, the law says that in order to resign in this way you must not have intermeddled in the estate. It is best to decide early on if you do not want the job, before you make decisions that affect the estate.
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| If two people are named as co-executors, one of the co-executors can decide they do not want the job. As of March 31st, 2014 it is no longer necessary for a co-executor to complete the “Renunciation of Probate” form. A co-executor’s right to be named as executor on a grant of probate is reserved if they don’t renounce.
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| If there is no co-executor, the alternate executor can take over. If there is no alternate named in the will, someone will have to apply to become estate administrator of the estate. It is best to agree to act as executor only if you feel you can do the job well. Being an executor takes time.
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| ===Does an executor get paid?===
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| Any expenses the executor has while settling the estate are paid for out of the estate. Examples of expenses are: photocopying, postage, and long-distance phone calls.
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| Sometimes the will states the executor’s fee. This is the maximum the executor can receive. If the will does not list any fee, the executor may take up to five percent of the gross value of the estate and five percent of the income. The amount depends on how much work is involved and whether the executor hires professional help or does it all him or herself. In cases where the executor continues to act over a long period, the executor may also receive an annual care and management fee of .4% of the estate.
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| Sometimes the will leaves the executor a special gift for doing the job. In this case, he or she will get an executor’s 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 the gift (ie. jewellery, cash, or real estate given under the will) is not.
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| Often an executor does not accept a fee. This is common if the executor is a spouse, family member, or close friend. An executor who is also a beneficiary may apply for a fee, unless the will says that this cannot happen. If there is more than one executor, the fee is split, but not always equally.
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| The executor applies for the fee when he or she prepares the accounts for the beneficiaries to approve. If the beneficiaries do not agree with the proposed executor fee, they can require the executor to show his or her accounts to a Registrar of the Court, who will set the fee.
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| ===What if I have disagreements with the other executor?===
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| If the executors do not agree, it may cause problems. For example, if one executor wants to sell the house and the other disagrees, there will be no sale. If you have serious disagreements with other executors you may need to contact a lawyer. Disputes may have to be settled in court. If there is more than one executor, you are legally responsible for what the other executor does. For example, if the other executor takes
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| funds from the estate, you have to make up the loss. You can then sue the other executor.
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| ===When does my responsibility as executor end?===
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| There is no set time when the responsibilities of the executor are finished. The executor remains responsible for looking after the estate. Even if the estate has already been distributed. If assets or debts turn up years later you will still be legally responsible for dealing with them. Your role as executor is only finished when the court formally discharges you. In practice, most people say it takes about a year to complete the work of executor for a straightforward estate.
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| ===Should I get help from professionals?===
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| Many executors do the work themselves. Others may hire a lawyer to do some or all of the work. Probate is considered legal work and only lawyers can do it on behalf of an executor. Some executors may hire a lawyer to handle complex business matters and an accountant to prepare the final tax return.
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| A lawyer or notary public can help you if you need to provide affidavits, a written oath that swears the information you give is true. Professional fees are paid out of the estate. Ask beforehand about costs.
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| ===If the will was made in another province, is it still valid?===
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| If someone dies in BC, but had a valid will in another province, an executor may be able to act on the will. The process may be more complicated. It is always a good idea to make a new will when you move to another province.
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| {{REVIEWED | reviewer = [[People's Law School]], 2014}}
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