Can I appoint my lawyer as my executor?

In Canada, you can appoint either an individual or a trust company as your executor. If the individual you choose is a lawyer, that's the same as appointing any other person. It means, however, that you can't appoint the law firm that the lawyer works for, just the lawyer himself or herself.

By the way, I should clear up one common misconception here. If your lawyer acts as your executor, your lawyer cannot charge your estate for executor work at the same rate he or she would charge for legal work. If your lawyer may charge $350 to work on your lawsuit or contract, but he or she cannot charge that for executor work. This is because you appointed an individual executor who just happens to be a lawyer. The lawyer will be limited to charging what any other executor could charge (in Alberta, that's 1% to 5% of the estate).

If your executor is a lawyer and he or she does legal work for the estate, such as applying for probate, then that work can be charged at full lawyer's rates, because your executor would have to pay a lawyer for that anyway.

In my years of private practice, before coming to my current job of in-house lawyer, I was asked many, many times to act as executor for clients. I almost always turned it down. In speaking with other lawyers about this, I understand that most lawyers will turn it down most of the time. Where your lawyer is a family member or close friend, that's different. However, I think that even if you do want to appoint your lawyer, you may not be able to get your lawyer to agree to it.

Most people will ask their lawyer to be their executor because they don't have anyone in the family or a close friend that they feel is appropriate. This often happens when people have immigrated from another country and don't have relatives in Canada. It also happens when people don't have children, or their children live far away, or perhaps don't get along. It can also happen when the clients want to set up lengthy or complicated trusts that they don't feel would be best managed by an inexperienced person.

Before you name your lawyer as your executor, think about this. If you name your lawyer as your executor, and your lawyer dies before your estate or your trusts are wound up, who is then in charge of your estate? The executor named in your lawyer's Will becomes your executor. Do you even know who that is? Your lawyer's husband/wife? One of the lawyer's children? Remember that you are appointing the individual person who happens to be a lawyer; you're not appointing the law firm.

The same idea applies when you appoint your accountant, your financial planner or your doctor, all of whom I hear proposed as possible executors from time to time.

If you don't have an appropriate family member, or you need specialized skills for your estate that you are not sure are available in your family, consider a trust company. Most people immediately think that using a trust company is terribly expensive, but in reality it's cheaper than you think. It's certainly worth a phone call to a trust company, or a conversation with your banker, to find out what it would cost you. And always remember to look at the value of what you're getting and not just the price of what you're getting.