Why Do Executors Need to Carefully Read Wills?

Are you an estate executor under a will? You may get a call from a mysterious co-executor like I did yesterday.

The caller said, “My name is Mitch Davis. I was told by my uncle that you and I are the co-executors under his last will.”

“Who is your uncle?” I asked.

“Henry Davis. You may already know Henry died yesterday at 7:53 p.m.”

“I’m sorry to hear that but I was unaware…”

“I thought so. That’s why I am calling. My sister has taken over all funeral arrangements. Since you and I are co-executors should we do something about this?”

“Well I think we should start by reading the will. Do you have the original or a copy of the will?” I asked.

There was silence and then this answer.

“No, I do not even have a copy of the will. I thought you had it?”

I’ll tell you how our conversation ended in a moment. First, here is what you need to know about wills.

Executors: What You Need to Know About Wills

You don’t need to have any legal training to be an executor. However, you need to know something about wills. Here are some basics so you won’t have any regrets later.

The will gives you instructions. You need to read the will and understand some basics before meeting an estate lawyer.

Look for these answers at your first reading of the will:

1) How many executors are required to act?

In some cases, you may be one of two or three co-executors. You may not be able to act without the consent of the other executors. Can you locate them quickly?

2) Does the will allow for a majority of executors to make decisions?

Do you get along with your co-executors, Tom and Harry? You may be frustrated if you don’t. The decisions of executors must be unanimous. Unless the will specifies otherwise, a simple majority is not enough make decisions.

Conflicts and deadlocks may arise as you handle an estate.

If that happens, each executor may need to hire separate lawyers. Beware! If you are unreasonable, your co-executors can blame you for all the extra legal costs. You may end up paying your own lawyer’s fees and those of your co-executors.

3) Are the witnesses to the will still alive?

You will need proof the witnesses saw the will being signed. This is a legal requirement to probate the will. Without witnesses, can the will still be valid?

For proof, lawyers usually prepare a sworn statement called an affidavit. This document is signed under oath. We call this an affidavit of execution of the will. This proves the signatures of the witnesses and the will maker. It may be attached to the original will.

What If You Can’t Find A Will?

Get a lawyer to explain your first steps. This may include determining where to look. Lawyers can conduct other searches to locate the will.

Protect yourself from mistakes and liability. You should have an estate lawyer confirm your authority before you act or arrange the funeral.

If there is no will, you are not a co-executor. And that is what I told Mitch.

To learn more about Executor Duties, read Ed’s Executor Essentials.

About Ed

Edward Olkovich (BA, LLB, TEP, and C.S.) is a nationally recognized author and estate expert. He is a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of seven books. Visit his website, mrwills.com, for more free, valuable information.