Losing a loved one can be an emotional and challenging experience. Navigating the legal and financial aspects of their estate only adds to the complexity. This is why I tell my clients that choosing the right person to administer the estate is as important (maybe more important) than any other single decision you make in estate planning.
An Executor, often referred to as a personal representative, is an individual designated in a Will to carry out the deceased person's wishes and manage their estate. Selecting a competent and capable Executor is a crucial aspect of effective estate planning.
Selecting the Right Person
First and foremost, selecting an Executor is about selecting the right person. While it is certainly an honour to be thought of for this role, it is a tough job- and a job that many people don’t want. For others it is too much of a job for them to do in their present circumstances. A competent person, who can get things done under stressful circumstances is essential to ensure that your wishes are carried out.
An Executor needs to be well-organized, detail-oriented, and possess an appropriate understanding of legal and financial matters.
The Executor plays the pivotal role in assessing the estate, distributing assets, settling debts, and handling any complexities that may arise during the probate process.
They also become Trustees of the estate, with legal obligations toward the beneficiaries.
The Executor is often required to make important decisions as Trustee that can impact the financial well-being of the estate. This includes selling assets, paying off debts, and handling tax-related matters.
It is crucial to choose someone who can handle these responsibilities with integrity and in the best interest of their beneficiaries.
Getting the Right Help
While the Executor’s task can be somewhat difficult and complex, there is help out there for those that feel less than competent:
Executors can, and often do, get help from family and friends.
Most importantly, Executors also can take up the service of professionals such as lawyers and accountants. Indeed, the most important decision that an Executor makes is to engage a good Probate lawyer to help and advise with all the tasks that need to be completed.
So, while the buck always stops with the Executor, much of the stress and anxiety can be negated by making that (first) smart decision.
Choosing the Right Alternate Person
In addition to selecting a competent Executor, it is also important to designate an alternate Executor. Life is unpredictable, and the first-choice Executor may become unable or unwilling to fulfill their duties. This could be due to health issues, personal circumstances, or other unforeseen reasons. By appointing an alternate Executor, you create a failsafe mechanism to ensure that someone capable is always available to manage the estate.
The Consequences can be Significant
The importance of having a competent Executor for a will cannot be overstated. These individuals shoulder the responsibility of honoring the wishes of the deceased and managing their estate as Trustees. This is something we see in the Probate (back-end side) of estate administration.
In one estate, where the Executor simply froze under the burden for over a year, the fiscal and practical consequences were enormous. The wrong kind of person was put in the role (an otherwise wonderful relative that lacked the ability to get things done under emotional pressure).
Failing to appoint anyone can also cause the same problems. In one estate, where a person died unexpectedly, leaving a child heir, it took 18 months to get an administrator appointed (i.e. a person to act in the Executor role) and to discover all of the assets (and liabilities) of the estate.
Think of what would happen if you stopped paying bills or talking to your bank for a calendar year! Now imagine you are the court appointed replacement who has to clean up the mess!
Creating a Will and appointing the right Executor is a crucial step to ensure that your wishes are honored and your loved ones are provided for after your passing. By drafting a Will that (A) appoints a good Executor and (B) clearly outlines your desires for the distribution of assets and guardianship, you relieve your family of potential disputes and uncertainties during an already difficult time. Appointing a trusted Executor ensures that your wishes are executed smoothly, providing peace of mind and a thoughtful legacy for those you care.
If you need help drafting a proper Will, or if you have questions about being an Executor, reach out to our Wills + Probate Team any time!
This is not meant to be, and should not be construed as, legal advice for your specific situation. You should contact one of our lawyers here at Richards + Company for further information and to discuss your particular facts and situation.
Chad Graham is a Barrister & Solicitor with Richards + Company. He practices estate law (dealing with probate and administration of wills). real estate, corporate commercial, and has been growing a not-for-profit practice as well.