Although many consider it an honour to be asked to act as an executor, the responsibilities involved can be complex and time consuming. Understanding them will assist you in choosing the person best suited to be your own executor, and ensure any decision you may make to act as an executor is an informed one.
The duties of an executor include the identification and collection of the assets of the estate, the safeguarding and investment of those assets pending distribution to beneficiaries, the payment of debts and liabilities owed by the estate, the filing of appropriate tax returns for the deceased and the estate, and ultimately the distribution of assets to beneficiaries in accordance with the provisions of the Will. What follows is a closer look at some of these and other responsibilities.
Locating the Will
An executor must use reasonable efforts to locate the last Will of the deceased. Even where a Will has been identified, this means searching through all of the places where the deceased kept his or her papers and records (and under the laws of some provinces, on electronic devices) to ensure it is the most recent Will made.
If only a copy of the Will is found, the executor should check with the lawyer or law firm who prepared the Will, if identifiable, to determine the whereabouts of the original Will. If a trust company is named as an executor, it should be contacted to determine whether it holds an original Will in safekeeping or has information concerning its whereabouts.
In British Columbia, a search of the Division of Vital Statistics Wills Registry must also be conducted. The Will Search Certificate issued in response will indicate whether a Will Notice was ever filed by the deceased. If so, the Notice will confirm the date and location of the original Will.
Funeral and burial arrangements
Although funeral and burial arrangements are usually made by family members, it is the executor who has the legal authority to make those decisions. Interestingly, directions contained in a Will as to the wishes of the deceased are not legally binding on an executor, although they are generally followed. When making funeral and burial arrangements, unless the Will directs otherwise, an executor must ensure the costs are reasonable in light of all of the relevant circumstances.
The laws of many jurisdictions require an executor to mail a notice of his or her intention to probate the Will, together with a copy of the Will, to all of the beneficiaries referred to in the Will. In some jurisdictions, such as British Columbia, these materials must also be sent to the persons who would have been entitled to share in the estate of the deceased if he or she had died without a Will (i.e. the next of kin of the deceased), even if they aren't named as beneficiaries.
If any individual is a minor or is mentally incapable, additional notice requirements will apply.
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