When updating your estate plan, it's important to consider who will be the key decision-makers on death and on incapacity. Understanding these roles can help you prepare better for your future and make informed decisions about your property and personal care. This blog highlights the responsibilities of fiduciaries in the estate and incapacity planning context.
Executor
An executor is the person (or people) appointed under a
deceased's Will who administers a person's estate on their
death.
The following list (which is not exhaustive) highlights the core
responsibilities of an executor:
- Making proper funeral and burial or cremation arrangements;
- Locating the Will;
- Locating the beneficiaries;
- Gathering assets;
- Settling the liabilities of the estate, including debts, taxes and expenses related to the estate;
- Applying for probate, where necessary;
- Filing necessary tax returns and paying any tax owing; and
- Distributing the assets of the estate to the beneficiaries and establishing any testamentary trusts.
The complexity of the estate will depend on a number of factors, including the nature, situs and value of the assets, debts and liabilities of the deceased, the number of beneficiaries, and managing family dynamics, to name a few. These factors can create challenges that require careful navigation (often with the help of professionals).
Trustee
A trustee is a person who holds title to property on trust for the benefit of other persons or for certain specific purposes. A trustee can be appointed under an inter vivos trust or a testamentary trust. Often for a testamentary trust, a trustee may be appointed as the executor of the estate and then will continue to act as the trustee for ongoing testamentary trusts created under the Will.
The core responsibilities of a trustee generally include the following:- Managing and investing trust assets;
- Distributing income or capital to the beneficiaries in accordance with the terms of the trust;
- Annual tax compliance; and
- Communication with the beneficiaries.
A trustee's responsibilities can last for many years, depending on the terms of the trust. For example, if funds are set aside for a minor until they attain age 21.
Attorney for Property
An attorney for property is a substitute decision-maker appointed under a Continuing Power of Attorney for Property or equivalent. An attorney for property can make decisions about your financial affairs, including, for example:
- Paying your bills;
- Maintaining or selling your house; and
- Managing your investments.
An attorney for property acts in the best interest of the
individual ensuring their financial well-being. He or she steps
into an individual's shoes and, if the Continuing Power of
Attorney for Property is a general one and has no conditions or
restrictions, can do everything the individual can regarding his or
her property and financial affairs other than make a Will.
The term "attorney" in this context does not refer to a
lawyer or legal counsel, but to the person appointed as a
substitute decision-maker under a Continuing Power of Attorney for
Property or equivalent.
Attorney for Personal Care
An attorney for personal care is a substitute decision-maker
appointed under a Power of Attorney for Personal Care or
equivalent. An attorney for personal care can make decisions about
your health and medical care, housing, and other aspects of your
personal care such as diet and clothing.
As one client described it, an attorney for personal care is the
person who will "feed me apple sauce". An attorney for
personal care makes decisions about medical treatment and care
plans, which may be on an ongoing basis or in an emergency, and
advocates for an individual's wishes and best interests. These
can be very emotional decisions.
All these roles operate in different contexts and require a high
level of responsibility. It's important to distinguish between
and understand each role to ensure you are choosing the people best
suited for each job.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.