Executor and Personal Representative
While most people may refer to it as “executor”, a “personal representative” is in fact the legal term in British Columbia for a person who has been appointed as executor and trustee in someone’s last will and testament. Historically, personal representatives were referred to as executors. The legal terminology formally changed to “personal representative” in 2014 when the Wills, Estates and Succession Act came into force. Since the historical term is still commonly used in BC, we will use the term “executor” to refer to personal representatives throughout the article.
Generally speaking, an executor manages the assets, debts and taxes of the deceased and their estate. They are also responsible for distributing the deceased’s assets in accordance with the deceased’s will. In many cases, the executor must also apply to the Supreme Court of British Columbia for probate of the deceased’s will.
Sometimes, a person’s last will appoints more than one executor. The co-executors are typically called on to carry out their duties as executors jointly. In most cases, the will-maker will also appoint one or more alternative executors, who are authorized to act when the will-maker’s first choice is unable or unwilling to act.
In some circumstances, the deceased may die without a will. This is called dying intestate. In these circumstances, the individual seeking to act as executor must apply to the court to be appointed to administer the estate. This is known as obtaining a grant of administration.
Duties of the Executor of an Estate
The duties of an executor can be time consuming and burdensome. There are general duties imposed by law, and additional or modified duties may be expressed in the will. Thus an executor’s specific duties will vary from estate to estate. The general duties that apply to executors typically include: safeguarding the deceased’s assets, paying the deceased’s debts and making provisions for preparing tax returns for the deceased and the estate, searching for assets and creditors, notifying beneficiaries, managing the deceased’s investments and insurance, continuing or initiating legal actions on behalf of the estate, and keeping proper accounting of all of the money that comes in and out of the estate.
The executor may also be required to obtain probate for the estate. Essentially, a grant of probate validates the will and provides third parties (such as banks, insurance companies or land registries) evidence of the executor’s legal authority to deal with the deceased’s property. In practice, many third parties will refuse to deal with a executor until a grant of probate has been obtained.
If you are uncertain as to whether or not the estate you are administering requires probate, you may wish to speak with an Estates Lawyer.
Deciding to take on the Role of Executor of an Estate
The fact that a person appointed you to be their executor does not legally require you to take on the role. An executor who does not wish to act, or is unable to do so, may be able to legally renounce the appointment, allowing a remaining co-executor(s) or alternate executor(s) the opportunity to take on the role. However, you can be deemed to have accepted the role of executor (and the corresponding personal liability) merely by acting in a manner that shows intention to assume that role. Conversely, if you are not appointed as an executor and you would like to take on this duty, you may be able to challenge the appointment of another person as executor.
If you have been appointed as executor in a deceased individual’s will, and are uncertain as to whether or not you wish to take on the role, you may wish to seek legal advice prior to commencing.
Executors take on personal liability, including liability for breach of trust in connection with administering the estate, and for errors or omissions in managing the assets and liabilities of the deceased. Complications in estate administration often arise if the will includes ongoing trusts which must be administered and in situations where the deceased has a complex investment or asset portfolio, where the executor is not familiar with the deceased’s financial affairs, or where there are disputes among estate beneficiaries or the executor.
Depending on the estate, there may also be estate variation and litigation considerations that arise as part of the estate administration. Very generally, the Wills, Estates and Succession Act permits spouses and children to make an application in court to vary a will that does not, in the court’s opinion, make adequate provision for their proper maintenance and support. The potential for wills variation claims often prompts executors to engage a lawyer to assist even at the earliest stages of the estate administration process. A lawyer will be able to discuss in greater detail the duties involved in acting as executor, and assist you in limiting your personal liability throughout the process.
Before taking on the role of executor, it is important to consider the duties, time, effort and potential for person liability involved in accepting the role, and to understand that in some cases, renouncing the role may be a preferable option.
Schedule a consultation with a lawyer at Taylor & Taylor Law.