Do I Want to Be an Executor?

We are going to start off by beginning a series of posts about what being an executor or administrator of an estate entails.

Terminology

First, we should begin with a bit of terminology.

• If one is named in someone’s Will as an executor one is referred to as an executor.
• If one is not named in someone’s Will but one is appointed by the court to take on the same set of responsibilities as an executor, one is referred to as an administrator of the estate.

Under the Wills, Estates and Succession Act, S.B.C. 2009, c.13 ("WESA"), both executors and administrators are referred to as "personal representatives". This series of posts will refer largely to executors, but most of the points discussed are applicable to personal representatives generally.

Executor

The job of an executor is often not a simple one, even when everyone is getting along and the assets of the estate are relatively straightforward. As we will explore over the next several months, there are plentiful duties and potential pitfalls that an executor must attend to in the course of their duties.

Agreeing to act as an executor is not a step to be taken lightly. By doing so, one is accepting significant duties, and an executor can be held personally financially liable for the failure to carry out those duties properly. For that reason alone, it is wise to seek the assistance of a lawyer if you are considering acting as an executor. Even if probate is not required for the estate, an experienced estate lawyer can quickly provide a summary of your duties, the potential risks, and steps that can be taken to minimize those risks.

One cannot be forced to act as an executor. If one has been named as someone's executor in their Will and is unable or unwilling to act, WESA permits one to make an unconditional renunciation in a prescribed form. The renunciation form (Form P17) must be filed with the court to be effective. Unless ordered otherwise by the court, one's executorship will be terminated upon the filing of the renunciation. If an alternate executor wishes to step in and is applying for a Grant of Probate, the renunciation of the primary executor will be usually be included as a part the alternate executor's application.

Until one has carefully considered the duties and risks of acting as an executor, one should take care not to intermeddle in the affairs of the deceased. Acting like an executor can easily, and without any formality, cross the line into acting as an executor and assuming all the risks and duties that go with that role.

For example, representing oneself as an executor, collecting or paying debts on behalf of the estate, or taking possession of estate assets, may be regarded as intermeddling. Once one has intermeddled, the opportunity to renounce executorship has passed. One may then be held personally liable for a failure to properly administer the estate.

One should not wait too long to make one’s decision though. Anyone with an interest in the estate can file and serve a citation in accordance with the Supreme Court Civil Rules. The filing and serving of a citation can effectively compel an executor to either seek a Grant of Probate within six months, or renounce (or be deemed to have renounced) the role of executor.

Join us again next month when we will continue our series by giving a broad overview of the duties of an executor.