Executor Services: Top 5 Questions Every Ontario Executor Should Ask Before Saying Yes to the Job PART 1

Does the law require you to remember what you said 10 years ago?

You told your Uncle Dilbert about 10 years ago that you would consent to be his estate executor. Now, Dilbert has suddenly died. You are surprised to learn his last will named you his estate executor. Must you now serve as estate trustee of his estate? Let’s explain your options.

Would it make a difference if your uncle never spoke of a will?

Your verbal “Yes” ten years ago does not, today, oblige you to accept the job. Do you want to walk into a dangerous jungle full of snakes and relatives with legal problems? You are not obligated to suffer as estate executor – unless maybe you are a grieving relative and beneficiary of your uncle’s estate. Then you should, at least, take that into consideration.

Questions you must ask yourself should be reviewed with your estate lawyer. Only lawyers can read the will and explain what you can expect. Here are some questions to ask your lawyers:

1. Will there be lawsuits?
   Hire your own estate lawyer to advise you of any will issues. These issues may lead to lawsuits. You may not want to be involved in any five-year court battle with a spouse, business partner or the tax department. Rely on legal advice to answer these questions. Confirm if the estate can pay for your lawyers.

Recall wills are legal documents that judges can invalidate. This can take years in court if you have to prove the will is valid. How is your health? Are you ready for a legal battle?

2. What does the will say about your compensation?
   You may have loved your uncle but if the will prohibits you from being paid any executors compensation, you may choose to walk away. This may not be as painful or dishonourable as it sounds.

What if your uncle named an alternate or backup executor in his will? This person can take your place if you renounce as an executor.

Know this about executor compensation: wills need not specify what your compensation is for acting as an executor. There is a standard approach, by law, to calculate executor compensation. It is your taxable income. This amount must be approved by all capable residual beneficiaries. If not approved, you ask judges to approve your compensation.

3. Is the estate broke?
   If your uncle owned a business that was failing, you may not want to be involved. There may be partners, creditors and income tax liabilities to contend with. There may not be sufficient money in the estate to pay for professional advice and tax filings. If so, you may not want to handle the job. You should, therefore, renounce as an estate executor before meddling in the estate.

If you start acting as an executor, you need consent of beneficiaries and the court to resign. This is a difference between renouncing at the outset and resigning later after you get involved. Once you are involved in the estate, you become a fiduciary. You are obligated to account for your conduct and for every penny in the estate. This is even if you did not handle any investments or the real estate portfolio that collapsed by 25% in value overnight.

You need advice about accepting the job as an estate executor. Want more information about your duties and tasks? Arrange a meeting to discuss your needs.

Want to learn more about your Ontario journey as an executor? Download my free guide, Suddenly You’re An Ontario Executor.

Read Part 2 of this post.

Need Executor Services?

I can help you make decisions and explain your job. If you wish to know what’s involved in acting as an estate trustee in Ontario or to learn more about your duties, contact me for a meeting.

I am a Certified Specialist. Estate law is all I do.