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Wednesday, June 16, 2010

If you're appointed as an executor, should you accept?

One of the things I've heard many times from clients is that they've been named as someone's executor and they are honored to have been chosen. Don't kid yourself. It may be intended as an honour but the reality is that it's detailed, lengthy, thankless work at times. In this post I want to look at a few of the factors you should consider before you agree to accept the job of being executor.

Keep in mind that you can't be forced to be an executor. You can refuse ("renounce") as long as you refuse before you do anything about the estate that makes you look like you're accepting the job. In many cases, people accept the role out of family obligation, but if that is not the case for you, consider the following questions:

1. Are you prepared to accept the fact that being an executor carries personal liability for any losses you cause to the estate due to fraud, negligence or mistakes?

2. Are you in (or likely to be in) a conflict of interest? The most common of these is a person who wants to contest what he or she is getting under the Will but who is also named as executor. It's not a good idea to try to do both.

3. Is a bond required? And if so, are you bondable? If you live outside of the province in which the estate is to be probated, you will likely have to obtain a bond in the full amount of the estate before you are allowed to proceed.

4. How long is the estate likely to take before it is completely wound up? Are there lengthy trusts under the Will, such as for a young child who is not going to inherit until he or she is 21? Are you prepared to be in charge of the trusts for that long?

5. How complex is the estate? Does the testator own a business that you would have to sell, carry on or wind up? Does he or she own a farm that will require management until it is sold? Are there beneficiaries that are going to be next to impossible to track down? Are there problems with the Will itself that are going to need Court interpretation? Is anyone going to contest the Will?

6. Do you have the time and skills to properly look after the estate? Note that executors can delegate administrative tasks, but can't delegate tasks that require him or her to exercise judgment or discretion.

7. If there is a co-executor named, can you two get along well enough to manage an estate?

8. What are the family dynamics like? If you're part of the family, are long-standing rivalries or disputes going to cause a problem for you? Will you be able to resist the temptation to take sides? Will you be able to handle it if people in your family criticize or nag you?

9. How much compensation will you receive when all the work is done? Hopefully the Will will contain some guidance, but in the event it does not, will getting paid from the estate be a problem?

As you can see, this is a more complex decision than you might have thought at first. Try to be practical in deciding whether you're really prepared to take on an executorship. If you really don't want to do it but there simply isn't anyone else, consider accepting the executorship but hiring a trust company to handle most of the work for you.

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