In the unfortunate event of death, the executor(s) named by a Will (liquidator in Quebec, see below) is charged with carrying out the final wishes of a deceased testator and administering the estate. The estate is, in general terms, all the money and property left behind by the testator. The executor(s) will be required to pool all the remaining assets of the deceased, pay any debts or taxes, and distribute the remainder in accordance with the Will.
Executor(s) have an obligation to administer the estate in a timely manner. Although there is no stated time period during which a trust must be administered, the common law presumes that an estate takes approximately one year to administer properly. This is known as the “Executor’s Year”. After the Executor’s Year, in some cases beneficiaries may be permitted to seek payment.
I have been named in a Will as an executor. Do I have to accept?
A person appointed by Will may decline to be an executor. However, if an appointee is considering declining the appointment, it is imperative for them not to begin administering the estate. Once an individual begins to act as an executor, a court order may be required in order for them to resign.
What should I do next?
If a potential executor has not been named by Will as estate trustee, they will need to obtain a Grant of Administration or a Certificate of Appointment. If an executor is explicitly named by Will or has obtained a court order permitting them to administer the estate, they should begin by identifying anyone familiar with the business and private affairs of the deceased such as lawyers, accountants, business partners, etc.
A named executor can begin making funeral arrangements. The Will may outline funeral instructions or pre-paid plans. If the Will contains no requests, it is prudent to involve family members in decision-making, since they will likely have thoughts about the deceased’s funeral wishes, and may have wishes of their own.
If the estate is sizeable or complex, an advisor may be engaged to draft and review the probate paperwork. The ultimate responsibility for review and signing of probate paperwork lies with the executor, but the use of an advisor can simplify and expedite the process. The cost of any legal fees and taxes are deducted from the estate once the legal work is complete. A TEP can act as an advisor or assist in engaging, instructing, and comparing specialists.
Satisfying debts and obligations of the deceased
One of the key responsibilities of an executor is to ensure that any outstanding debts or obligations of a deceased are settled, including any outstanding tax obligations. People familiar with the deceased may provide some guidance on known debts. However, in order to give notice to any other potential creditors, a notice should be posted in a local newspaper and (if appropriate in the province) in the provincial gazette. The notice must provide the deceased’s name and a request for any potential creditors to come forward.
How do I obtain a death certificate?
A proof of death certificate can be obtained from the funeral home. This document should be registered with the Vital Statistics Agency in the province in which the deceased resided. This Agency can provide an official death certificate. A proof of death certificate will be sufficient for most purposes in some provinces.
What if there is not enough money in the estate to cover funeral expenses?
The executor may apply to the deceased’s municipality for funding to assist with funeral expenses. Arrangements should not be made until eligibility for assistance has been determined.
Notifying beneficiaries named in the will
Executors are legally required to notify all beneficiaries named in the will. If the executor applies for probate, courts will require proof that beneficiaries have been notified.
Valuation of the estate
An executor is required to establish the value of the deceased’s estate for the purposes of filing the terminal year tax return of the deceased, calculating capital gains taxes, and determining probate fees/estate administration tax to be paid on the value of the estate. A licensed TEP can help with the process of estate valuation.
Do I have ongoing obligations? How long does this take?
The length of time required to administer an estate depends on, among other factors, the complexity of the estate, size of the estate, and number of beneficiaries named in the Will. With a standard estate, it is assumed that the bulk of the process will take approximately a year. Tax matters will generally take longer, especially if a Clearance Certificate is requested from the Canada Revenue Agency. As part of the distribution of the estate, the executor may need or wish to present a formal “passing of accounts”. This process involves the presentation of written accounts to a Court and items of controversy may be challenged by one or more beneficiaries.
Do I get paid as executor?
The Will may or may not explicitly provide for executors to be compensated. If the Will is silent on the matter, the appointee may still be compensated for acting as an executor. This would either require approval from all of the beneficiaries, or an order from the Court as part of a passing of accounts. A Court can order that any compensation taken by an executor without approval be repaid.
What is a liquidator?
In the province of Québec, a liquidator plays a similar role to an executor in other provinces. Liquidators are responsible for distributing the succession of the deceased. This role has slightly different obligations than the requirements for an executor in other provinces. For example, in Québec, there is a legal duty to not only notify the beneficiaries in the Will, but also to notify anyone who would inherit if the person died intestate.
For further information or assistance in carrying out your duties as an executor, please consult a TEP.