Your Last Will and Testament is an expression of your wishes for how you would like your possessions to be distributed, and within every Last Will and Testament a person will be identified as the Executor (or Personal Representative). We always highly recommend that before you name that person in your Will, you ask them first, as it is not everybody is in a good position to take on the responsibility. Here’s just a few things that the Executor will have to do;
The first obligation of the executor is to locate and read the original of the most recent Will of the deceased. Hopefully, the “testator” (the individual who wrote the Will) has previously informed the executor or their family where their Will and other important papers are kept. If not, then the Executor must search all likely places for a valid Will. If the Will is kept in a safe deposit box, then the Executor will have to take a key, the Death Certificate and personal identification in order to access the box. The bank will then draw up an inventory of the contents, and the Will will be released if the Executor can demonstrate that they are indeed the person with Executor responsibilities for the Will.
In some jurisdictions, a Will search may need to be undertaken with any government body, in order to prove that the Will being submitted is indeed the most recent Will. It is possible in some jurisdictions to receive a Wills Search Certificate, which should be filed together with the application for the “Grant of Letters Probate” (or equivalent in your jurisdiction), which will grant the Executor the legal right to administer the estate.
The Executor should apply for the Death Certificate of the testator, which can usually be obtained from the Funeral Home director. This usually takes one to two weeks to receive.
The Executor has the right to determine how to dispose of the deceased’s body. Any funeral wishes expressed by the deceased are not legally binding, although in practical terms personal wishes are usually respected. Hopefully the deceased has documented their funeral wishes somewhere, for example, by using a service like the one at www.PartingWishes.com
The deceased’s assets are frozen until the Grant of Letters Probate is received. This document formally acknowledges that the Executor has the legal authority to administer the estate. However, any property held jointly between a married couple can automatically be passed in its entirety to the surviving spouse upon presentation of the Death Certificate.
The Executor must notify everybody who has an interest in the estate and what, if any, is their entitlement described in the Will. If the Will, or the authority of the Executor is challenged, then the Executor may have to provide documentary evidence that they have complied with any legal requirements.
A list of assets and liabilities must be drawn up, including their value at the date of death. This list must be included in a Disclosure Statement, which is submitted together with the application for the Grant of Letters Probate.
The Executor must secure all assets, either by taking them into his or her possession, changing locks on doors or by taking out a full insurance policy.
All prospective creditors must be given an opportunity to stake a claim on the estate. The Executor must advertise for anybody who may have a claim against the estate. Creditors with a valid claim can recover their debt at any time, even after the estate has been distributed to the beneficiaries.
The next step is to apply to probate the Will, so that the assets can be dealt with legally. This may require legal assistance.
The Executor is responsible for filing taxes on behalf of the deceased, including income taxes and capital gains taxes.
Once the Executor has obtained legal authority to distribute the estate, they must pay all outstanding debts and expenses, including funeral expenses and all taxes. It may be worth obtaining a certificate from the taxation department e.g. Revenue Canada, Internal Revenue Agency or HM Revenue certifying that all taxes have been paid, prior to distributing the estate.
Once all debts have been paid, the estate can be distributed to the beneficiaries starting with specific bequests to individuals. If the Will provides for the setting up of Trusts, then the Executor is responsible for making these arrangements. Once all specific bequests have been distributed, the residue is distributed.
The Executor is accountable to the beneficiaries for the assets of the deceased. It is therefore vital that accurate records are maintained when dealing with all debts, expenses, taxes and the distribution of the estate.
So, if the person that you have in mind for your Executor isn’t very organized, hasn’t filed their own taxes for a few years, doesn’t show up when you expect them to, find somebody else. Your Executor doesn’t have to be your best friend, it has to be your most capable friend or loved one. Or alternatively, consider naming a professional; most banks offer the service.