Drafting a will is not just about who gets what.
One critical decision often overlooked by testators is the appointment of an executor – also known as the estate trustee – the person responsible for administering the estate when the time comes.
The role of executor is not an easy one, typically involving at least a year gathering financial information, signing forms, filing taxes, paying off debts and distributing assets under the estate.
Even if you’re able to find a friend or close family member who is willing to take on the task, it could end up costing your heirs if they’re not up to the job.
In one recent court case, the beneficiaries of a Toronto woman had to go to court to bring the rogue executor of her estate to heel – and even then there are no guarantees that they will be able to recover the money they are owed as a result of the trustee’s misconduct.
When the testator died in 2002, her daughter was appointed executor under the terms of a 1996 will.
According to the decision, her actions over the following two decades read like a kind of “what not-to-do” guide for estate trustees. Over many years, she failed to communicate with beneficiaries or their lawyers, ignored court orders to provide basic information and failed to pass her accounts, before a judge finally removed her from the role in 2022, replacing her with one of her brothers.
In a subsequent judgment, the court then ordered the former executor to pay damages to the estate for breaching her fiduciary duties to the tune of $175,000 as a result of unpaid property taxes, legal expenses and bank fees, plus another $50,000 in punitive damages to express the judge’s “abhorrence” of her conduct.
When choosing your own executor, you should be looking for someone you trust implicitly, considering the level of responsibility associated with the job.
Although they will generally be able to seek help from lawyers, accountants and other professionals, the executor is expected to coordinate any necessary work, so make sure you have a frank discussion explaining why you want them to take the position and what is involved in the role.
If nobody among your friends and family fits the bill, it may be worth approaching a trust company to administer your estate instead.
Disclaimer: The content on this website is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
