Do You Want To Be Executor?

You got the job but are you sure you want it?

Of course you feel honoured to be named as an executor.  But you don’t always have to accept the job.  You may not want the headaches associated with the post.

Let’s consider how the law, estate beneficiaries and creditors can treat you.  This will impact your thinking and your first and perhaps biggest decision.

Aaron’s Tale as Executor

Aaron had a copy of his Uncle Bill’s last will made in 2003.  He was named as executor for his uncle’s estate.  What could go wrong?

Aaron started the funeral arrangements. He went to his uncle’s home to collect clothing for the funeral home.

Aaron noticed the garbage had not been picked up.  He collected other perishables from Bill’s refrigerator.  He then decided to take the refuse to dispose of it.  His own garbage pickup was scheduled for the next day.

In total, Aaron loaded five garbage bags into his car.  The neighbours also noticed him loading his trunk.

What if there is another will?

Uncle Bill had a new neighbour, Jack.  Jack was on vacation when he heard Bill had passed.  Jack now tells Aaron he is Bill’s executor.  Jack has Bill’s original will signed in the hospital only weeks before he passed away.

What is Aaron supposed to do?

He needs legal advice to consider his options.

Aaron could ask for legal advice about how to:

• investigate if the new will was created under suspicious circumstances
• find out if Bill’s new will was prepared by Jack’s lawyer
• determine if Bill was well enough to make a will

Aaron needs legal advice about his obligations.  Normally he would stop all activities on behalf of Uncle Bill’s estate.  Otherwise, he could be called on to explain his conduct in court.

What if Jack accuses Aaron of removing Bill’s valuable coin collection?  These are now missing from Uncle Bill’s house.  How does Aaron explain what he removed from the house?  Will Aaron be believed?

Aaron is responsible to explain his conduct.  He can still be in trouble if he never probates Bill’s will.  Aaron could be held to the same standards of an executor who administers estate property.  What does that mean?

Aaron could be treated like a fiduciary even though he was not appointed as executor.  He can be responsible to creditors, beneficiaries and the court. Aaron may have to explain why he removed five bags of material from Bill’s house.  He may need to hire a lawyer to assist him.

A court could consider Aaron as having meddled in Bill’s estate.  He could be treated as having accepted the office and the responsibilities of an executor.

The legal term frequently used to describe this is being an executor or trustee de son tort.  You become an executor because of your intermeddling in the estate.  A court will impose duties on you to account for your conduct.

What to remember:

• handling a deceased person’s assets is dangerous
• don’t take steps unless you are confirmed as executor under a valid will
• only the original will can validate your authority

You need to resolve any doubts with experienced legal advice.

About Ed

Edward Olkovich (BA, LLB, TEP, and C.S.) is a nationally recognized author and a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of seven estate books including Executor Kung Fu: Master Any Estate in Three Easy Steps. Visit his law firm’s website, MrWills.com, for more free valuable information. (c) 2014