Your Duties As Executor
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This script discusses the duties of an executor of a will and how to probate an estate.
What is an executor, and what do they do?
An executor is a person or company named in a will. The executor gathers up the estate assets, pays the dead person’s (deceased’s) debts, 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.
How do you confirm that you were named as executor?
You need to get the original will to check this. The person who died and made the will is called the will-maker. 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. You should do a search of the Wills Registry of BC’s Vital Statistics Agency to ensure you are dealing with the last will.
The will-maker or their lawyer may have registered a wills notice with Vital Statistics. This notice tells where the will-maker planned to keep the original will. If a wills notice was registered, you can locate and obtain the original will and confirm that you were named as the executor.
A wills notice may not have been filed and the document will say that. Or the will might have been moved from the location listed in the wills notice. It does not matter if the will has been moved, but you do need to give the wills notice to the Probate Registry. For the Vital Statistics Agency office near you, call 1.888.876.1633 or check with Vital Statistics.
To look in a safety deposit box, phone the bank and make an appointment. Take the key, a death certificate, and your own identification. 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 safe deposit box until you give them a copy of the Grant of Probate (explained below). You and a bank employee will then list the contents of the safety deposit box. You need to keep a copy of that list.
Decide if you want to be the executor
If you haven’t yet dealt with any of the estate assets (or “intermingled” them), you do not have to be executor. “Dealing with an asset” may mean paying debts or changing the insurance on a house. Acting as an executor can be challenging, time-consuming, and stressful. You should agree to be executor only if you can take on this responsibility. Once you begin dealing with the estate assets, you’re legally bound to finished the job, and you can be relieved of your responsibility only by a court order. If the executor dies before completing their duties (and there is no alternate executor named in the will who is willing to be executor) then the executor’s executor (named in the executor’s will) becomes the new executor, in most cases.
Consider hiring a lawyer
If you agree to be the executor, consider hiring a lawyer to do the paperwork and advise you of your duties. If you do, the lawyer’s fees will be paid from the estate’s assets. Ask the lawyer how the legal fees will be calculated: a percentage of the estate or an hourly fee. But because unexpected matters often arise in estates, it may not be possible to get an exact estimate of fees. It’s a good idea to hire a lawyer for any estate involving the distribution of assets through a will, where a grant of probate is required. For most estates, it’s also a good idea to also hire an accountant to help with the several tax returns that need to be filed. Proper filing of returns and payment of taxes is one of the executor’s responsibilities.
Make funeral arrangements
The funeral is the executor’s responsibility, although you should consider the wishes of the deceased and their relatives. The funeral parlor will ordinarily order you copies of the death certificate. You may take the funeral bills to the bank where the deceased kept an account. If there’s enough money in the account, the bank may give you a bank draft from that account to pay the expenses.
Confirm it is the last will
You can sometimes confirm this by checking with the Vital Statistics Agency at the office closest to you. Most lawyers send a wills notice to Vital Statistics for every will they prepare. Vital Statistics will then send you a Certificate of Wills Search. This will let you know if there’s a record of the will and where the will is kept. You need this certificate when you apply to the court for probate (explained below). If you can't find the original will, the search results may help you find it. But not all wills are registered with Vital Statistics.
Cancel charge cards and protect the estate
Cancel all the deceased’s charge accounts and subscriptions. Also, ensure that the estate is protected. Make sure valuables are safe and that sufficient insurance is in place. Immediately change the locks on the apartment or house, and put anything valuable into storage. Most insurance policies cancel automatically if a house is vacant for more than 30 days, so ask the insurance agent about a “vacancy permit”.
What does it mean to probate an estate?
Probate is the process of getting a court to rule that a will is legally valid. An estate consists of any land, house, money, investments, personal items, and other assets that the dead person (the deceased) owned (with some exceptions).
Notify all potential beneficiaries
The Supreme Court Civil Rules and the new Wills, Estates and Succession Act (WESA) require that all beneficiaries (and certain family members who would be heirs if there was no will, or who are eligible to apply to court to change the will) must be given written notice of the executor’s application for an estate grant, including probate, plus a copy of the will. The estate’s lawyer generally does this.
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. 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.
Some assets don’t require probate
It depends on the type of assets in the estate. Certain assets can be passed down without probate. Land owned in joint tenancy with another person doesn’t require probate. If the deceased owned land or a house in joint tenancy with another person, you only have to file an application in the Land Titles Office along with the death certificate. This will register the land in the name of the surviving joint tenant.
Also, probate isn’t required for joint bank accounts or vehicles owned jointly. Again, the death certificate is usually sufficient to transfer these to the surviving joint owner.
In addition, RRSPs and insurance policies, which typically name a beneficiary to receive the proceeds when the owner dies, aren’t considered part of the estate, and therefore don’t require probate. You should give the death certificate to any insurance companies and RRSP administrators that the deceased had plans with. They’ll want the death certificate before paying money to a beneficiary.
Stocks and bonds
If the estate includes securities, such as stocks and bonds, you may have to apply for probate to transfer them. You should check with the financial institution or transfer agent for each security in the estate because they’ll have different requirements.
Deal with any pensions
If the deceased paid into the Canada Pension Plan (CPP), immediately apply to the local CPP office to inform them of the death and obtain any death, survivor, or orphan benefits. Most funeral directors can give you information and forms on CPP death benefits. You should also check with the deceased’s employer and union about any benefits from their work. If the deceased was receiving an old age security pension or other pensions, you also need to inform those pension offices about the death. Any CPP or old age security cheques for the month after the month in which the person died must be returned uncashed.
File certain income tax returns and pay income tax
You must file tax returns for any years the deceased didn’t file a return for. If the estate made any income after the date of death (such as rental income or interest on bank accounts), then tax returns will have to be filed for the estate for each year after death, until the estate is wound up or paid out.
Get a tax clearance certificate from CRA
The estate must pay taxes and obtain a tax clearance certificate from Canada Revenue Agency (CRA) before it can be distributed to beneficiaries. This certificate confirms that all income taxes and fees of the estate are paid. It’s important. Without it, CRA can impose taxes that you don’t know about.
Pay the estate’s debts
Depending on the circumstances, you may want to advertise for possible creditors so you can make sure all legitimate debts are paid. This is to protect yourself against creditor claims that arise after you distribute the estate. As the executor, you could be personally liable if you don’t pay the deceased’s debts, including any taxes owed, before you distribute the estate. You should talk to a lawyer about this.
Wait before distributing the estate because of the wills variation provisions of WESA
The wills variation provisions of the Wills Variation Act 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 (give the claim to them). So you should wait at least 210 days from the grant of probate before distributing the assets of the estate, or obtain consents and releases from each potential claimant. You are responsible if the assets go to the wrong people: you could be sued.
Finally, distribute the estate to the beneficiaries
But before distributing the assets under the will, submit a full accounting of the estate’s financial activities and obtain a release from each beneficiary. Your accounting will usually include a claim for reimbursement of expenses that you paid 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 and is taxable income. If you want to claim a fee, include it in the accounting that you send to the beneficiaries.
Unless there is only one beneficiary, such as a spouse or children, you may not want to distribute any part of the estate to beneficiaries until you get the CRA 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.
[updated April 2017]
The above was last reviewed for accuracy by Hugh McLellan and edited by John Blois.
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