Tom Carter - So Youve Been Appointed Executor

Each and every one of us has friends, family, or loved ones and even though we dont like it, the fact is that they and we ourselves are getting older every day. It goes without saying that we will all die eventually, and when we do, our debts and assets will have to be addressed properly. That means each of us has to know something about what it means to be an executor so we will know what to do when the time comes.

There is another reason why we need to know something about what it means to be an executor. We all know that we should prepare our own wills, and if we know what being an executor is all about, we will be able to choose the right person, for the right reasons, to do the job in our own estates.

We wrote this book to explain to you what you need to know when you are an executor, and to help you choose the best executor for your own estate. If you decide you need assistance, we hope that the information we provide about the various professionals and resources available will help you get that assistance, at a reasonable cost. Finally, we hope it will help you avoid some agony when you are faced with one of the toughest decisions when you make your own will who to name as your executor.

Throughout the book you will find tables of useful information and sample forms. Please note, each province and territory has its own forms for probate applications. To provide examples of each approved form for each jurisdiction would take two or three books the size of this one. Instead, in order to give you an idea of what those forms look like and what they say, we have created our own generic sample forms that contain the basic information commonly required across the country. If you are looking after an estate yourself, you will have to get the correct forms for your province or territory, as ours are not intended to be used in practice.

Please note, this book is not intended to give you detailed information on each and every challenge that can arise in the course of looking after an estate; it is not an encyclopedia of the law of executorship. Nor does it try to give you precise technical details about the forms and legal requirements of each province and territory. It is not a comparative law treatise. If you have questions about the laws or procedures in your province or territory, you should consult a lawyer, an accountant, or another estate professional in your area.

What this book does give you is an introduction to the predictable and unavoidable issues that each and every executor will face regardless of the size of the estate involved. These are the issues that our clients have dealt with over and over again during our decades of experience in private practice, and also in Toms years as a trust officer with a major trust company.

Being an executor is a fascinating experience. Sometimes it is a short and simple task that only takes a little common sense. More often, however, it is a long and tiring experience that leads you into a tangle of legal jargon and principles that is overgrown with the unrealistic expectations of beneficiaries and the deep, sometimes unsettling, emotions that affect all of us when a loved one dies.

The purpose of this book is to give you a general idea of what you need to know to get through that tangled thicket called being an executor. I hope it gives you the knowledge and confidence you need to make that journey successfully. Also, if you decide that you need professional help, we hope this book helps you find it.

When you get right down to it, we are talking about two priceless gifts that are merely the flip sides of the same coin honouring the wishes of a deceased person as quickly and cost effectively as possible and providing peace of mind for your loved ones and yourself in your will. When you think about it, it is within the power of each of us to give these gifts to those we love. We believe this book will help you do that.

Thank you for choosing this book, and good luck.

PART I

TO BE, OR NOT TO BE, AN EXECUTOR

CHAPTER ONE

Finding or Choosing an Executor

1. Its Tough to Choose a Good Executor

In the practice of law, estate planning lawyers work with many people who are struggling with deeply emotional issues. They are trying to make their wills, and they cant always easily decide what to put in them. Whether the person making the will is single or married, has children or not, there are so many difficulties to work through. For some, the most challenging decision may be who to choose as beneficiaries and what to give each of them. Others, however, feel a more exquisite pain. They grapple with choosing the right executor someone they can trust, absolutely and unconditionally, to carry out their wishes after they are gone.

One thing all estate planning lawyers will quickly tell you, is that clients often have strong, preconceived ideas about who they should be naming as their executor and how people should go about choosing an executor. People with families often dont want to hurt anyones feelings; they wanted to name everyone to act together as joint executors, so no one will feel left out. Others assumed that it is right to always name the eldest adult child, regardless of that childs demonstrated ability to do the job. Those without family worry about burdening their friends with the job; they are often interested in hiring a professional person to handle the work, but they are anxious about the extra cost that might involve, and about the possibility of delay in getting things done.

Sometimes the struggle to choose the right executor becomes so difficult that people are brought to a standstill and their wills run the risk of never being completed. Thankfully, that is very rarely the case when they seek advice from a professional with experience in this field.

2. Its Tough to Be an Executor

We have each worked with many executors, those who had been named in a will and were then called on to step in after the person died. These executors always knew it was an important job but they were usually in the dark about what they were supposed to do and when they were supposed to do it. Some of them didnt even know they had been selected as executor until after the person died and the will came out of a lawyers vault or a safety deposit box. They had no chance to prepare themselves for this unique and demanding job.

We have observed that most people who are named as executor dont like it. They may initially have felt honoured to have been named to such an important role, but frequently later found the experience to be much more difficult and time consuming than they expected. As the days and weeks wear on, any honour that might have been attached to the appointment typically fades. They often wished that the dearly departed had never thought of them at all. It is not uncommon for an executor to say never again as an estate administration matter is winding up, whether they have taken the opportunity to obtain professional help all along, or worked their way through most of the process on their own.