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Difference between revisions of "Your Duties As Executor"
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Your Duties As Executor (view source)
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{{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert|date= October 2018}} {{Dial-A-Law TOC|expanded = wills}} | {{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert|date= October 2018}} {{Dial-A-Law TOC|expanded = wills}} | ||
As an | As an executor, you’re in charge of looking after the will-maker’s affairs after they pass away. Before you accept to act as an executor, you should understand an executor’s duties. | ||
== | ==What you should know== | ||
===The role of an executor=== | ===The role of an executor=== | ||
An executor is a person named in a will to deal with the will-maker’s estate after they die. The person who died and wrote the will is called the '''will-maker''' (also called the '''deceased'''). An executor gathers up the estate assets, pays the debts of the deceased, and divides what remains of the deceased’s estate among the '''beneficiaries'''. The beneficiaries are the people named in the will to inherit the estate. There can be more than one executor. | An '''executor''' is a person named in a will to deal with the will-maker’s estate after they die. The person who died and wrote the will is called the '''will-maker''' (also called the '''deceased'''). An executor gathers up the estate assets, pays the debts of the deceased, and divides what remains of the deceased’s estate among the '''beneficiaries'''. The beneficiaries are the people named in the will to inherit the estate. There can be more than one executor. | ||
===You don’t have to act as executor=== | ===You don’t have to act as executor=== | ||
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===If you decide to act, you may need to probate the estate=== | ===If you decide to act, you may need to probate the estate=== | ||
'''Probate''' is the process of applying to court for a ruling that a will is legally valid and confirming that an executor is authorized to deal with the estate. An '''estate''' consists of any land, house, money, investments, personal items, and other assets that the deceased owned (with some exceptions, explained shortly). | '''Probate''' is the process of applying to court for a ruling that a will is legally valid and confirming that an executor is authorized to deal with the estate. An '''estate''' consists of any land, house, money, investments, personal items, and other assets that the deceased owned (with some exceptions, explained shortly). | ||
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|align="left"|'''Tip''' | |||
In light of the coronavirus pandemic, in-person registry services were suspended for a period of time. As of July 13, 2020, the probate registries are open for in-person services. While in-person filing of your documents is an option, the court strongly encourages [https://justice.gov.bc.ca/cso/index.do e-filing], faxing, or mailing your documents to the registry. [https://www.bccourts.ca/supreme_court/court_locations_and_contacts.aspx Here are contact details for registry locations]. The court has set out [https://www.bccourts.ca/supreme_court/documents/COVID-19_Notice_No.27_In_Court_Measures_During_the_Pandemic.pdf measures for those attending a courthouse in person]. | |||
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===Some estates don’t require probate=== | ===Some estates don’t require probate=== | ||
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===There are some expenses and fees you can claim=== | ===There are some expenses and fees you can claim=== | ||
You can be paid pack for expenses you paid out of your own pocket while serving as executor. You’ll | You can be paid pack for expenses you paid out of your own pocket while serving as executor. You’ll have to decide if you also want to claim a fee for acting as executor. This fee can be up to 5% of the estate (under the ''Trustee Act'') and is taxable income to you. If you want to claim a fee, include it in the accounting that you send to the beneficiaries. If the executor and beneficiaries can’t agree on a fair fee for the executor, the court will set it. | ||
==Deal with the estate== | ==Deal with the estate== | ||
===Confirm you have the most recent will=== | ===Confirm you have the most recent will=== | ||
People can make multiple wills over their lifetime. You will need to confirm that the will you have is the most recent one. You need to get the original will to check this. | People can make multiple wills over their lifetime. You will need to confirm that the will you have is the most recent one. You need to get the original will to check this. | ||
The will-maker or their lawyer may have registered a '''wills notice''' with BC’s Vital Statistics Agency. You should do a | The will-maker or their lawyer may have registered a '''wills notice''' with BC’s Vital Statistics Agency. You should do a [https://www2.gov.bc.ca/gov/content/life-events/death/wills-registry search of the wills registry] of Vital Statistics to ensure you are dealing with the most recent last will. A wills notice will tell you the dates of any wills the will-maker registered with the wills registry. | ||
If you need to find the original will, a wills registry search may help you out. A wills notice will tell you where the will-maker planned to keep the original will. The will might have been moved from the location listed in the wills notice. | If you need to find the original will, a wills registry search may help you out. A wills notice will tell you where the will-maker planned to keep the original will. The will might have been moved from the location listed in the wills notice. | ||
You will need to give a copy of the '''certificate of wills search''' and any wills notices to the probate registry. It’s important to note that not all wills are registered with Vital Statistics. For the Vital Statistics Agency office near you, call 1-888-876-1633 or | You will need to give a copy of the '''certificate of wills search''' and any wills notices to the probate registry. It’s important to note that not all wills are registered with Vital Statistics. For the Vital Statistics Agency office near you, call 1-888-876-1633 or [https://www2.gov.bc.ca/gov/content/life-events check the Agency’s website]. | ||
===Confirm you’re named as executor=== | ===Confirm you’re named as executor=== | ||
Once you’ve confirmed you have the most recent will, you’ll need to confirm you’re named as executor. You need to get the original will to check this. If the will is not at the will-maker’s home, it may be in a safety deposit box or at the office of the lawyer who drafted the will. | Once you’ve confirmed you have the most recent will, you’ll need to confirm you’re named as executor. You need to get the original will to check this. If the will is not at the will-maker’s home, it may be in a safety deposit box or at the office of the lawyer who drafted the will. | ||
To look in a '''safety deposit box''', phone the bank and make an appointment. Take the key to the safety deposit box, an original death certificate, and your own identification. If you don’t have the key, the bank can have the lock drilled open. If the will is there and names you as executor, the bank will let you take it. The bank will not let you take the contents of the safety deposit box until you give them a copy of the grant of probate (explained shortly). You and a bank employee will list the contents of the safety deposit box. You need to keep a copy of that list. | To look in a '''safety deposit box''', phone the bank and make an appointment. Take the key to the safety deposit box, an original death certificate, and your own identification. If you don’t have the key, the bank can have the lock drilled open. If the will is there and names you as executor, the bank will let you take it. The bank will not let you take the contents of the safety deposit box until you give them a copy of the grant of probate (explained shortly). You and a bank employee will list the contents of the safety deposit box. You need to keep a copy of that list. | ||
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===Cancel charge cards and protect the estate=== | ===Cancel charge cards and protect the estate=== | ||
Cancel all the deceased’s charge accounts and subscriptions. Also, ensure the estate is protected. Make sure valuables are safe and that sufficient insurance is in place. If the deceased lived alone, immediately change the locks on their home and put anything valuable into storage. Most insurance policies cancel automatically if a home is vacant for more than 30 days, so ask the insurance agent about a | Cancel all the deceased’s charge accounts and subscriptions. Also, ensure the estate is protected. Make sure valuables are safe and that sufficient insurance is in place. If the deceased lived alone, immediately change the locks on their home and put anything valuable into storage. Most insurance policies cancel automatically if a home is vacant for more than 30 days, so ask the insurance agent about a '''vacancy permit'''. | ||
===Deal with any pensions=== | ===Deal with any pensions=== | ||
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===You need to notify certain people of an application for probate=== | ===You need to notify certain people of an application for probate=== | ||
The [ | The [https://www.canlii.org/en/bc/laws/regu/bc-reg-168-2009/latest/bc-reg-168-2009.html Supreme Court Civil Rules] and the [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec121_smooth ''Wills, Estates and Succession Act''] require that certain people must be given written notice of the executor’s application for a grant of probate. This notice must be delivered, together with a copy of the will, to (among others) the beneficiaries named in the will, and certain family members who would inherit if there was no will or who are eligible to apply to court to change the will. | ||
===Prepare and submit the necessary probate documents=== | ===Prepare and submit the necessary probate documents=== | ||
The probate documents are submitted to court to get probate. Usually, you must get probate of the will to handle the deceased’s estate. If there are co-executors, all of them can apply for probate together or one executor can apply for probate and reserve the right of the others to apply later. | The probate documents are submitted to court to get probate. Usually, you must get probate of the will to handle the deceased’s estate. If there are co-executors, all of them can apply for probate together or one executor can apply for probate and reserve the right of the others to apply later. | ||
You’ll also have to pay the '''probate fees''' calculated by the court registry. The deceased’s bank will usually allow you to take these funds from the deceased’s account. | You’ll also have to pay the '''probate fees''' calculated by the court registry. The deceased’s bank will usually allow you to take these funds from the deceased’s account. | ||
===Wait before distributing the estate=== | ===Wait before distributing the estate=== | ||
[ | [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/129389/sbc-2009-c-13.html#sec60 The law] allows any child or spouse of the deceased to apply to the court to vary or change the will. There is a 180-day deadline, starting from the granting of probate, for applications to vary the will, plus 30 days to serve the executor with the claim (that is, give the claim to them). So the law says you must wait at least 210 days from the grant of probate before distributing the assets of the estate. There are some exceptions to this, such as if you get consents and releases from each potential claimant. Pay attention to these rules. You might have to pay out of your own pocket if the assets go to the wrong people. | ||
Our information on [[Challenging a Will | Our information on [[Challenging a Will|challenging a will]] explains wills variations claims in more detail. | ||
===Pay your expenses and fees and distribute the estate to the beneficiaries=== | ===Pay your expenses and fees and distribute the estate to the beneficiaries=== | ||
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Unless there is only one beneficiary, such as a spouse or child, you may not want to distribute any part of the estate to beneficiaries until you get the Canada Revenue Agency '''clearance certificate'''. If the whole estate goes to a spouse, and you transfer most of the estate to them before you have the clearance certificate, the spouse will be responsible for any outstanding debts and taxes. | Unless there is only one beneficiary, such as a spouse or child, you may not want to distribute any part of the estate to beneficiaries until you get the Canada Revenue Agency '''clearance certificate'''. If the whole estate goes to a spouse, and you transfer most of the estate to them before you have the clearance certificate, the spouse will be responsible for any outstanding debts and taxes. | ||
== | The executor usually has a year (called the '''executor’s year''') to complete the process, but it can take much longer, especially if the assets or liabilities are complicated, trusts are involved, or you cannot find a beneficiary. | ||
==Who can help== | |||
===With more information=== | ===With more information=== | ||
'''People’s Law School''' has a publication on | '''People’s Law School''' has a publication on [https://www.peopleslawschool.ca/publications/being-executor ''Being an Executor''] for people who have been appointed as executor in a will. | ||
* [https://www.peopleslawschool.ca/ Visit website] | |||
The '''BC government''' website includes information on [https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/financial-legal-matters/wills-and-estate-planning wills and estate planning] and [https://www2.gov.bc.ca/gov/content/life-events/death/wills-estates wills and estates]. | |||
* [https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/financial-legal-matters/wills-and-estate-planning Visit website] | |||
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