What is an executor?
An executor is a person named in the will to administer the deceased’s estate by locating all estate assets, handling funeral arrangements, paying the deceased’s debts and taxes and distributing the estate assets among the beneficiaries in accordance with the will.
Decide if you want to be an executor?
Being an executor is an important role it can be time-consuming and stressful. You should consider whether or not you will be able to fulfill your duties as an executor and the instructions of the will. Even though you have been named as an executor in the will you may decline to act before taking on that role. However, once you begin acting as the executor it will be harder to cease doing so, and often requires a court order to relieve you from your duties.
What happens if I decline to take on the position?
If there is a co-executor, or alternative executor, named in the will they may take on the position. If there are no such appointees able or willing to act, then a beneficiary may apply to court to be appointed as the Personal Representative of the estate.
Do I get paid?
Unless noted otherwise in the will, a representative of an estate may claim a fee of up to 5% of the aggregate estate. There are various considerations including the time and complexity involved in the administration of the estate; and all beneficiaries must consent to the representative’s fee.
What are the steps I should take if I am an executor?
- Locate the Will – Locate the will and ensure it is a valid and last will of the deceased. You may want to check with a Vital Statistics Agency to obtain a certificate of wills search. Read the will and determine what duties you need to fulfill.
- Seek legal advice – before proceeding with any estate administration it is prudent to obtain legal advice to ensure that you are legally permitted to administer the estate; and to determine whether there are any potential conflicts.
- Make funeral arrangements – The will may contain instructions regarding the deceased’s funeral wishes or arrangements they have in place. Be aware that the funeral costs may need to still be paid from the estate.
- Protect the Assets – Account for the Assets named in the will and create an inventory. The locks of a house may need to be changed or valuables moved to a storage locker. You will also want to make sure that there is sufficient insurance coverage for the assets.
- Deceased’s debts – determine what liabilities exist and obtain financial statements to identify the value of the debts. Check what payment arrangements are required so that further interest and penalties may be avoided; and real estate not foreclosed upon.
- Notify all Beneficiaries – A written notice of application to obtain a representation grant along with a copy of the will must to sent to all those named in the will (beneficiaries) and relatives that are eligible to apply to have the will varied (potential beneficiaries). Notice must be sent 21 days prior to the application.
- Obtain a Representation Grant – A court issued grant confirms that the will has been proven and the appointed representative has the authority to administer the estate under the terms of that will.
- Estate Administration – this may include the following tasks:
- closing accounts of the deceased – informing financial institutes and utility companies of the death.
- dealing with benefits and pensions the deceased left behind.
- if the deceased owned a business you may need to arrange for interim management.
- payment of debts and expenses of the estate.
- advertising for creditors.
- selling part of the estate to repay debts, if necessary.
- filing tax returns, payment of taxes; and applying for income tax clearance certificates.
- Accounting – provide a full accounting of all estate financial activities, including all receipts, payments/reimbursements and beneficiary distributions; and obtain a release from each beneficiary before releasing funds and distributing the estate.
- Distributing the Estate – Any claims for varying the will must be made within 180 days from when representative grant is issued; therefore it is advisable to wait 210 days, from the issuance of the representation grant before distributing the assets. Alternatively you may obtain a release from each potential claimant to do so. It is important to remember that as an executor you are personally and financially responsible for distributing the estate assets.
Further information on Trusts and Estate Law .
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.