If you have been informed that you are the executor of a will, you should be aware that this role comes with various responsibilities and liabilities.
Responsibilities and Liabilities
The basic responsibilities of an executor are to gather assets of the estate, pay the deceased’s debts and to distribute the remaining assets to beneficiaries of the estate.
However, in practice these responsibilities may present a variety of issues.
It is important to locate the original will of the deceased. If an original will can not be found and only a copy exists, under the Wills, Estates and Succession Act (“WESA”), it is presumed that the original will was destroyed by the will maker. Therefore, an application to the court must be made to rebut this presumption, or the assets under the estate will pass according to the intestacy rules in WESA. This may mean that beneficiaries that the will maker intended to receive assets upon his/her death, will receive nothing.
Before you distribute assets of an estate, you will likely have to apply to the court for an estate grant. Certain assets, for example property held in joint tenancy or jointly held bank accounts do not require an estate grant. We would be happy to discuss the requirement of obtaining an estate grant and the process with you in further detail.
Pursuant to the WESA, an executor must notify all beneficiaries under a will, including the personal representative of deceased beneficiaries, of the executor’s intention to apply for an estate grant. This notice must also be sent to certain people who under WESA would be entitled to assets if no will existed and people who may be eligible to make an application to vary a will in court. However, an executor may not be able to locate some of the people entitled to notice, in which case an application to court to dispense with notice must be made.
You must pay the debts of an estate before you distribute the assets. A common issue at this stage is that it may not be clear what debts exist. However, an executor can be found to be personally liable for debts of an estate, so it is important to take steps to reduce this liability.
Even after you have received an estate grant, there are several important timelines to be aware of in relation to the distribution of the assets. WESA allows for certain people to apply to court after the estate grant to vary the will. If you distribute assets as the executor of the estate and subsequently a will variation is granted by the court, you would be held liable for the assets being distributed to the wrong person, despite the original grant indicating otherwise.
The above list of responsibilities and liabilities of an executor is not exhaustive. If you have been unable to locate an original will, a beneficiary to an estate, or have questions about your responsibilities and liabilities please contact our firm at (604) 688-4900, or email Paul Barbeau at email@example.com or Morgan Best at firstname.lastname@example.org.