Choosing an executor is an important decision and taking on that role is a big responsibility. Any adult can be an executor regardless of education or experience but many of us are not aware of the magnitude of the job until we are called on to act.
In B.C., if the value of an estate exceeds $25,000 the executor is required to apply to the Supreme Court for a Grant of Probate which will validate the Will and their appointment. This process involves locating the Will, applying for a death certificate, determining the value of all of the assets and debts in the estate, providing notice to the beneficiaries of the intention to apply for a grant and preparing and filing sworn affidavits and other necessary forms required by the court. Once probate is granted, there are additional steps involved including but not limited to calling in the estate assets and selling property, filing the deceased’s taxes and estate tax returns, applying for tax clearance from Canada Revenue Agency and providing a detailed accounting of all funds in and out of the estate to the beneficiaries before making a distribution. It can take two or more years until a simple estate is wound up and often longer for a complicated estate with multiple companies, properties or foreign assets.
You can appoint more than one executor to share the workload but some issues can arise as a result because all executors must agree to all decision-making and are required to sign off on everything. It can also be a problem if one of the executors is not resident in Canada or even if they live in another province. It’s imperative that multiple executors are able to coordinate easily with one another and helpful if they have an amicable relationship. Appointing more than one executor or one primary and one alternate can be beneficial if one executor dies or is unwilling or unable to act when the time comes. If an executor does not wish to act, they can submit their resignation to the other executor(s) who will take over the administration of the estate.
Executors are entitled to claim compensation. The Will itself or a Fee Agreement signed by the will-maker may set out a dollar amount or percentage of the estate but if the Will is silent as to how much the executor can charge, the maximum prescribed amount under the Trustee Act is 5% of the gross aggregate value of the estate. The beneficiaries of the estate must agree to the executor fees being claimed if that is not set out in the Will. Barring agreement, or if there are minor beneficiaries, the executor may be required to apply to the court to determine their fee. If there is more than one executor claiming remuneration under the Trustee Act, the executor fee is divided among them, i.e. they are not able to claim 5% each.
An estate lawyer can provide guidance to an executor throughout the administration of an estate and ease some of the burden of this typically demanding undertaking.
Deborah A. Todd
