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Being an Exector Estate Planning

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Being an Exector Estate Planning Wills & Being an Exector Estate Planning What is an executor? • having the estate probated if burial or the type of funeral, necessary, the executor has the right to An executor is the person or decide the matter as he or she trust company named in a will to • paying the debts of the estate, and thinks best. If there is doubt administer an estate. The person • distributing the estate to the about the testator’s wishes, who made the will (called the beneficiaries. the executor should allow testator) expects the executor to the family of the testator to settle the estate and distribute choose an appropriate funeral the property to the beneficiaries What does the executor do upon arrangement. The funeral according to the instructions set out learning of the testator’s death? expenses are payable out of the in the will. As soon as the executor learns of the estate. death of the testator, the executor What is included in the estate? must decide if he or she is still willing When does the executor and able to act as executor. Usually, The estate includes everything read the will? the person named as executor has owned by the testator at the time discussed this with the testator in As soon as possible, the of his or her death. For example, advance so this should not be a executor should find, and the estate might include a house, problem. carefully read, the original will. cottage, automobile, bank account This should help the executor and investments. It would also The first event that must take place confirm certain points, such as: include any property that comes is the testator’s funeral. Ideally, the into the estate after the testator’s testator’s family and executor will • notice to next of kin and heirs, death. Since the testator is not there know where to find any specific • security of properties and to administer it, the executor takes funeral instructions. These should be other goods, on the responsibility for handling in a safe place so the executor can all matters connected to carrying review them at the testator’s death. If • special arrangements to be out the wishes of the deceased and this has not happened, the executor made if perishable goods are winding up the estate. will have to find and read the will to involved, see if it has instructions about the funeral. • steps to be taken to meet the What are the executor’s duties? immediate financial needs of The executor is responsible for: dependents, What if the will does not give • arranging the testator’s funeral, specific instructions? What if • determination of cash needs there are no instructions for for the administration of the • taking control of all the testator’s estate. property, documents and burial arrangements? accounts and making a list of Where the testator has not given them, instructions, such as the place of www.legal-info-legale.nb.ca 1 Wills & Being an Exector Estate Planning Can I refuse to act as an Can I be held responsible for • offer advice on your duties executor? mistakes I make while acting as as executor, an executor? You are under no obligation to act • prepare deeds and other as an executor. You can refuse the It depends on the circumstances. You instruments of conveyance, position when the testator first asks must act for the estate as if it were you. Or, if you agree to act as the your own property. An executor who • apply for probate of the will executor, you may still change your is reasonably careful in carrying out where necessary, mind at the time of the testator’s his or her duties will probably not be • prepare and obtain receipts death. If you are unable to act as held responsible if things go wrong. for inheritances delivered, executor when the beneficiaries ask However, if the executor is careless, etc., you to distribute the inheritances, he or she can be held responsible you can refuse to act. You will for the losses suffered by the estate. • arrange for the registration automatically lose all rights of For example, if you make frivolous of assets in the name of the executorship. You do not have to investments or unauthorized beneficiary. make a formal renunciation in court. expenditures on behalf of the estate, you may be liable. You might have to Will I be paid for my services If I start my duties as executor repay losses personally. as executor? can I change my mind later? The executor has the right to Can I get help if administering Once you begin to carry out be paid for his or her services. the estate becomes complicated? the duties of an executor, you The fees that you receive as May I hire a professional? cannot just walk away. By law executor are taxable (to you). If your intervention in the estate Yes you may. It is important that you the testator has not arranged makes you responsible for the handle the estate properly because for payment in the will, then executorship. If you wish to back you may be held responsible for your you can make a claim for out after you have taken control of mistakes. When you are in doubt financial compensation before the testator’s property, you must about what to do, it is wise to consult the Probate Court. Family formally renounce your position. a professional. The estate would members will often agree to To do this, you must submit the pay for reasonable fees charged for administer an estate without renunciation in writing to the professional services. taking a fee. You should discuss Probate Court. this with the testator. Whatever you agree to should be set out This does not mean that you cannot When might I need the help of a in the will. ask about the assets and liabilities lawyer? of the estate. However, your actions The executor also has the may establish you as the executor. A lawyer may be able to help an right to be reimbursed for all You should therefore be careful executor in the following ways: reasonable expenses made while before taking any actions that may • give opinions about the meaning administering the estate. commit you to this position. of the will, www.legal-info-legale.nb.ca 2 Wills & Being an Exector Estate Planning When do my duties as executor complexity of the estate. In most request that you be dismissed end? cases, one year is considered a simply because they do not like reasonable period of time. The one of your decisions. The executor’s duties end as soon longer the executor does take, as the estate is completely settled. the more likely it is that the Do I have to submit accounts This normally means when all the beneficiaries will complain. They to the Probate Court? debts of the estate have been may apply to the Probate Court paid, including income tax, and for an order compelling the In the administration of simple the testator’s property has been executor to carry out his or her estates, the beneficiaries often distributed according to the will. duties on a timely basis. sign a «release». This relieves In rare situations, it may be the executor from his duty necessary for the executor to Can the beneficiaries have to account to them for the reopen the estate after it is closed. me dismissed as executor? administration of the estate. For example, the discovery of sums However, any beneficiary of money, up to 15 years after the Yes. Any interested party who who has not signed such a death of the testator, would force has reason to believe that an release or who has done so the executor to reopen the estate executor has acted improperly in without knowing what he or and distribute the money according the administration of an estate she signed, may apply to the to the instructions in the will. may start a legal action to have Court to require the executor the executor removed. They do to account to the Court for the this by making an application administration of the estate. Is there a deadline for closing to the Probate Court. They the estate? must show that the executor No, there is no strict rule about committed a fraud or acted in an the length of time an executor unreasonable manner which has is allowed to complete his or resulted in a loss to the estate. her duties. It all depends on the In other words, they cannot Published by: This pamphlet does not contain a full statement of the law in this area and laws change from time to time. Anyone who needs specific legal advice should talk to a Public Legal Education and Information Service lawyer. You may wish to check out our other pamphlets on wills and estate planning. of New Brunswick P.O. Box 6000 Public Legal Education and Information Service of New Brunswick (PLEIS-NB) is a non- Fredericton, NB E3B 5H1 profit, charitable organization. Its goal is to help the public know the law. PLEIS-NB Tel.: 506-453-5369 receives funding and in-kind support from the federal Department of Justice, the New Fax: 506-462-5193 Brunswick Law Foundation and the Office of the Attorney General of New Brunswick. Email: [email protected] We gratefully acknowledge the cooperation and assistance of members of the Law www.legal-info-legale.nb.ca www.familylawnb.ca Society of New Brunswick, the Department of Justice and Public Trustee Services (NBLASC).
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