Healthy Executors are Not at Risk

Let me clarify that headline: All executors are at risk if they do not understand their legal duties.

You can be attacked by estate beneficiaries, taken advantage of by smooth sales people, and even get sued. I encourage executors and estate trustees to get proper legal advice. Being healthy does not change that responsibility.

The demands of handling an estate can take a toll on anyone. If you are handling a spouse’s estate, it is not easy. You need to deal with mountains of paperwork. But I am talking about being an executor where the estate is an unhealthy mess.

You may not recognize this mess immediately. As an estate lawyer, I have seen these estate battles go on for years. You can spot the usual suspects. There may be a second wife, step children, a common law spouse, a summer home or a business. They are all wrapped up with a bad will or estate plan. Everyone is at each other’s throats before they even get to the funeral.

Executors, your age and health are relevant

You cannot be forced to accept the job of being an executor. These are duties that are stressful. If your age and health put you at risk, do not accept the job.

What if you are 72 years old and live 3,000 miles away from where the deceased’s estate is located? How can you arrange a funeral, let alone apply for probate for the estate?

If you are in a situation like this, you must seriously consider renouncing rather than resigning as executor. You don’t want to impair your health by administering the estate. Consider getting advice to not accept the job by renouncing.

What is the difference between renouncing and resigning?

Renouncing as executor or estate trustee means:

You decline to act as executor because you choose not to assume the responsibility. This can be because of age, illness, lack of time or inability to act. Renouncing can be done by signing a form, filing it with the court and notifying the people named in the will to act as backup executors in your stead.

Resigning as executor or estate trustee means:

You quit your duties after you have begun to handle assets as an executor. You cannot quit or resign at this point unless you have court permission. A court must appoint a replacement executor. You may need to explain to the court what you have done. Hopefully you can account for every penny you may have spent. You just can’t walk off the job. You need someone to replace you to protect the estate for creditors and beneficiaries.

So, do you want this executor job or not?

Your health and age are factors to consider. A simple estate can take 12-18 months to get tax clearances. You must prepare to make the time commitment at the start.

What if you live far away?

Long-distance is a terrible way to find out you have a fire you can’t put out. Don’t start acting as an executor if you are afraid you will not be able to finish the job.

Remember, it is better to renounce the position rather than to resign from it once you have started.

If, for any reason, you have to resign, you will need to ask for permission from the beneficiaries and a judge. Resigning as executor is a time-consuming and costly process.

Tip: Renounce as executor if the duties will affect your health.

About the Author, Ed Olkovich
Ed is recognized as a leading Canadian estate expert. He has practiced law in his own firm since 1978 and is a Certified Specialist in Estates and Trusts Law. Ed is also the author of seven books, including Choosing Executors and Executor Kung Fu.

For Your Protection
This information is not financial, legal, tax, medical, or psychological advice or a substitute for professional advice. Always consult a professional before taking any action. The author and publisher assume no responsibility for loss or damages, direct or indirect from use of this material.  You may reproduce with permission from Ed who can be reached by email at ed@mrwills.com or by telephone at 416-769-9800 or toll free at 1-877-MrWills.