What are my duties as an Executor? 10 Things to Guide You through the Process
When someone passes away, a person needs to be appointed to take care of their Estate. That person is called the “Executor” if the deceased had a will. If the deceased did not have a will, then the Court will need to appoint someone. The appointed person is called an “Administrator” (see our blog entry: what happens if I die without a will?).
Being an executor, or administrator, is a lot of work. Executors and administrators can also be held personally liable for mistakes. In this blog, we’ve compiled a few steps an executor needs to take. If an executor or administrator has questions, it’s always best to reach out for legal advice. This list is also unique to the New Brunswick legal process and is not meant to be relied upon for legal advice.
Funeral, Burial, and Obituary Arrangements
As the executor, you will need to make sure the funeral, burial, and obituary arrangements are paid for. You can be involved in planning the funeral, burial, and obituary, but it is not legally required. While it is best to follow the deceased’s personal wishes for their funeral, it is not legally required.
You will need to obtain the death certificate, which is available at the funeral home or Service New Brunswick.
2. Locate and read the Will
If your loved one has passed away, it’s important to find and read the will. As the executor, your duty is to carry out your loved one’s wishes, not your own. If you haven’t discussed the will with your loved one ahead of time, you may be surprised or confused by what the will contains. If you have questions, it’s always best to contact legal counsel.
3. Go to the Bank
Once you have the will, make an appointment with the bank of your loved one. The bank representative will inform you if the will needs to be Probated through the Court. If the will needs to be probated, then contact legal counsel to assist you. If not, then determine the amount in the bank account, and advise the bank that your loved one has passed away so you can open an Estate account.
4. Make a list of your loved one’s assets, debts, and possessions
You will need to make a list of all of the assets your loved one had at the time of their death. This includes all their personal possessions, any land or property they owned, the bank accounts, investments, shares, insurance policies, or any other item of value that was in their name. You must also make a list of any debt your loved one had at the time of their death.
5. Cancel services
You will need to cancel your loved one’s accounts and subscriptions with service providers, Service Canada, Service New Brunswick, utilities, landlord, Canada Post, credit cards, and other accounts or subscriptions.
Some services, such as home or auto insurance, mortgages, should be maintained until the asset is gifted or sold.
6. Contact beneficiaries
If there are beneficiaries under the will who are not aware, you should contact them, provide them a copy of the will, and advise them of any progress.
7. Determine the distribution of assets
Once you have determined all of the assets and debts of the Estate, you are able to dispense with the assets in accordance with the will. This includes transferring property, vehicles to increase the amount of the Estate residue.
The debts of the Estate need to be paid before any beneficiaries can be paid. In New Brunswick, debts need to be paid in the following order:
Funeral Expenses;
Probate Tax and fees;
Solicitor costs;
Wages owed related to any business of the deceased;
Liabilities and debts owed to the executor; and
Executor’s fees.
After the debts of the Estate are paid, then specific gifts can be given to beneficiaries. If the debts cannot be paid, then the assets of the estate must be sold to pay the debts. If you have questions about this, contact legal counsel.
8. Executor’s Fees
Sometimes your loved one will include an executor’s fee in the will, however, sometimes the will is silent on a fee. Courts have stated that a fee of up to 5% of the Estate is appropriate, depending on how complicated the Estate is. If an executor is a professional, such as a lawyer, they are not allowed to charge their professional fees for their handling of the Estate (i.e. charge their hourly rate to the Estate).
9. Taxes
The executor is responsible for making sure the income taxes for the Estate are paid properly and within the specific time period. If you have questions regarding this, reach out to a tax professional. You can also obtain a clearance certificate from the Canada Revenue Agency to make sure your tax obligations for the Estate have been met.
10. Dealing with Surprises or Problems
As an executor, you may learn things about your deceased love one that you were unaware of (such as illegitimate children, hidden debts or funds, etc.). You may also find out that other relatives or people are upset by the death and turn their grief into anger. Sometimes this can cause problems and you may need a lawyer to assist you. The Estate will pay for legal fees that are reasonable. If you’ve run into a legal issue related to acting as an executor, then it’s always best to reach out for legal advice. There is also executor’s insurance available for larger estates.
