Legal Costs Drowning Executors Personally

Are you are an executor caught in a challenge to a will? You need to learn the role you must play. Executors must remain neutral. You cannot take sides in a dispute or you put yourself at risk. You can be personally responsible for the legal court costs.

The courts have thrown out the old rules about who pays legal costs. Executors were protected when there was an estate dispute. The estate used to pay for Executors’ legal costs.

However, there is a wave of estate disputes now hitting the courts. Things have changed. Financial realities have affected the judicial system as well.

What’s new for Executors?

Angry family members, ex-spouses, children and stepchildren are fighting over wills. More people now go to court to challenge wills.

The size of contested estates has grown as well. It is not uncommon to see multimillion dollar estates in play. The tendency with some litigants is to go for broke. This winner take all approach can ruin the estate.

A person can waste $100,000 at an estate trial. More than ever the courts have started to sandbag parties who are responsible.

Executors’ Responsibilities

Judges decide who pays for estate disputes. They can punish misconduct, such as:

• Unreasonable behaviour designed to stall or hinder

• Not using alternative dispute resolution methods

• Fighting tooth and nail over Granny’s china cabinet.

What if you as executor do not remain neutral? Did you take the side of an unsuccessful party in a dispute? In Ontario, the losing party pays the successful party’s legal costs. This is the rule that now applies in estates cases unless an exception applies.

There are exceptions of course.

Courts often must interpret a will or protect the vulnerable and minors. Executors do not cause these problems. In such cases the executor must hire lawyers. The estate may pay the executor’s legal costs.

What if you are an executor in an estate dispute?

Make sure you act reasonably. You must remain neutral when representing the estate.

Do not advocate for one beneficiary over the other. That can put you personally out of pocket or purse.

What an executor must do?

1. If you are involved in an estate dispute, get experienced, expert legal advice.

2. Make sure you have a written opinion about who will pay your legal costs.

3. Do not misread this post. If there is a will contest you need legal advice immediately. Only a lawyer can advise you about your duties.

Ed Olkovich

P.S.

Remember,

As an executor

• You are not required to perform legal work.

• You are not qualified, licensed or insured for such services.

Often I see executors making mistakes trying to save money. These are mistakes that lawyers would not make. Finally, applying for probate or a certificate to prove the will is legal work. Hire the right estate lawyer to do it.