Based upon our numerous interactions with our clients and the questions they ask us, we’ve provided five sections within this guide to help you with the executor role research journey and help answer some of the questions you may have:
There may be a time in the future when someone close to you, perhaps a parent, a sister or brother, an uncle, or even a close friend, asks you to be their executor.
Being named as an executor could be a great honor and an opportunity to help a good friend or loved one, perhapssomeone who has been there for you in times of need.
In the event you have already been appointed as executor, you may have many questions regarding your duties and responsibilities.
In many cases, people don’t think about what’s involved in being an executor, until after the testator has recently passed away, which can add complexity to an already emotional and challenging time for the executor.
Accepting the role as an executor should include some reflection, research, and analysis to ensure that the role is a fit for you.
In addition to following the deceased (testator) instructions, you will also need to safeguard the assets of the estate.
This may also be a good time to seek the advice of a lawyer and other relevant professionals.
The deceased has trusted you to follow the directions detailed within the will and to fulfil the needs of the will’s beneficiaries, according to the will’s instructions and in accordance with Ontario law.
As an executor, they have the authority and permission to hire professionals, including lawyers, accountants, and financial planners.
They will need to be transparent, keep detailed records, correspond with all stakeholders, including creditors and beneficiaries. Among other duties, they will identify and keep track of the testator’s assets.
An executor needs to have the time and competency to fulfill this role. The executor must expect and be prepared for the unexpected.
In addition to numerous legal requirements, and tax returns, there are many forms and administrative documents which will need the executor’s attention along with all necessary communication to the will’s stakeholders, including interaction and communication with creditors, beneficiaries, and family members.
These are all pertinent and applicable questions. If possible, many of these questions should be asked of the testator while they are still alive, especially the location of the will, inventory of assets, their financial contact information, along with the testator’s lawyer and accountant names and contact information.
This guide will highlight important items which will try to address the many executor role and estate administration procedures.
One of the first things you will do as an executor is to locate the will and accompanying documents.
Will you be able to locate these documents when needed? If the testator lives alone, do you have a key(s) to their home? If they have a spouse or children, are they aware that you are executor, and they are available to support you when the time arises?
One of the first questions we receive from our clients when they have been asked to be an executor is usually “What do we do next’’?
Receiving counsel, guidance, and direction, based upon a client’s unique circumstances can often be very overwhelming, which leads us to one of the last questions asked at the end of a first client meetings, which is “Is there some type of guide to help us through the executor role”?
This guide is written for those individuals who have been named as an executor and are uncertain what to do next or who can help them with this role.
Our objective with this guide is to help you with some of these questions.
In addition, we will also focus on some of the most often asked questions that our clients have requested of us and provide you with possible next steps and insights about being an executor of an estate.
In advance of passing away, a loved one can take many proactive measures to prepare their will.
Although the named executor can perform many of these steps in advance with the living testator prior to their death, this guide will focus mostly on ‘after testator death’ activities.
The executor is not expected to do the legal work, those functions are the responsibility of a lawyer and paid by the estate.
Many executors are not aware that they are permitted to talk to and receive assistance from advisory professionals related to the estate, including lawyers and accountants, and other professionals.
In this brief guide, we have attempted to provide as much information as possible. However, it is difficult to cover all the topics and information related to being an executor.
If you need additional or expanded information related to these topics, we have included a robust collection of source materials and link sources at the end of our guide within the Sources and Additional Information section, or alternatively you can always contact us at our office for further information or clarification.
If you have been asked to be the executor (also known as Estate Trustee) of a will you should be aware of the responsibilities and duties of this role prior to accepting.
The role of an executor can be best defined as the individual who has been named by the deceased (also known as decedent or testator) in a will. They are responsible for following the instructions left by the testator, in their will.
When acting as the executor, you will need to act and perform this role with the highest competence and integrity.
The Ontario courts and the beneficiaries will need to be satisfied that the estate has been administered appropriately and accurately.
Another question we often answer is “Can the executor or estate trustee be a beneficiary?” The answer is “yes”.
The living spouse of the deceased is often named as the executor, and the deceased’s children are also often named as an executor, in most cases they are often also beneficiaries.
A person is not obligated to act as an executor or estate trustee. You may be ineligible to be ‘Estate Trustee’ without a will if you have claims against the estate, as this would be considered a ‘conflict of interest’.
There are other executor role duties and responsibilities, which we will outline in the ‘Checklist of Executor Tasks’ section, however these are the initial steps you need to attend to immediately.
The executor is not expected to do the legal work, those functions are the responsibility of the lawyer and paid by the estate.
If the person who has been named as executor or estate trustee declines or cannot act, then the beneficiaries of the estate may nominate a person to act as an estate trustee.
Depending upon the complexity of the will and the amount of time and work performed by the executor, the executor may be entitled to compensation.
The value of the estate is taken into consideration when determining the executor compensation.
If not detailed in the will, your lawyer can help you understand the fee structure for executors, based on previous executor fees which have been approved by Ontario courts.
Fees are based approximately upon the deceased estate value and can range between 3-5% of the gross value of the estate.
In instances where trusts are established, the executor may also be entitled to charge an annual management fee.
The Trustees Act in Ontario allows for executor compensation. “A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice.” ~ Ontario Trustee Act
The act is not specific as to how compensation is calculated.
Ultimately, the executor will have to receive the beneficiaries’ approval for the compensation they claim. Alternatively, if the beneficiaries and executor cannot agree on what is fair compensation, the executor can bring an application before the Court, referred to as “Passing Accounts”, to have the Court decide what compensation the executor is entitled to.
The executor role will need time, focus and administration efforts, including detailed record keeping.
This work effort will also include communication, diligence, and sound decision-making based upon the testator’s instructions in the will and to also satisfy the creditors, beneficiaries, and the courts, if necessary.
This section will include a detailed checklist for the executor, after the death of the testator.
Not all executor check lists are the equal, every situation is different, so your specific check list requirements may differ from the ones we have provided, that being said, we are confident that this Executor Supplemental Checklist will be of some value for the role you are about to provide.
This list may also provide more ‘actionable items’ than you may encounter or need to perform, and it may not be all encompassing either.
Our goal is to provide you with the most common areas to ’check-off’, and that you should consider for your executor role.
These are helpful next steps once you have reviewed the ‘Initial Steps’ in ‘The Role of an Executor’ section.
This checklist works hand in hand with Initial Checklist in the first section, many of the items in the Executor Supplemental Checklist could be included in the Initial Checklist, every situation varies and is unique.
The administration and distribution of an estate can take some time to conclude. In most cases, a simple estate can take a year or two to close, and more complex estates 2 years or more.
The Estate Administration and Distribution Checklist is also closely integrated with the Initial Checklist and Executor Supplemental Checklists:
There is an ‘order of operations’ related to the distribution of an estate’s proceeds, in most cases the funeral fees are paid first, then government (federal first, then provincial) taxes gets paid next, then the creditors are paid and then the beneficiaries are paid out.
The executor is responsible for this ‘order of operations’ distribution and administration. If an ‘interim’ payment is required, the executor will need to assess and validate the request to ensure the order of payment operations is completely fulfilled and paid out
Probate is one of the terms we get the most questions about. In fact, probate isn’t so much a place or event, it’s something that needs to be performed in accordance with the Succession Law Reform Act.
In the past, Probate or Probating a will was called ‘Letters of Probate’.
Every province is different, we will be focusing on the laws relating to Probate in Ontario, however the logic is mostly the same across all the provinces.
The outcome of probating a will is the issuance of a Certificate of Appointment.
Essentially, probating a will is the process of proving a will and certifying the executor as the Court appointed individual with the authority to take control of the testator’s assets.
Probate is not, generally, the process by which an executor is appointed to administer an estate. The authority to administer an estate is granted to the executor, by the testator, through naming the executor in that role, within their will.
Probate is required in some instances, where the estate contains assets that require a “certification” from the Court, in order for the executor to take control of, transfer and/or sell those assets. To be clear, not all estates need to go through probate.
Notwithstanding that probate may not always be required, in some cases, an executor may still probate the will to ensure that the deceased’s will is validated by the court as the final version and the last wishes of the testator. This is because once a Will is probated, the will is recognized by the Court as the valid last will of the testator and unless there are extenuating circumstances to the contrary, the will cannot, usually, be over-turned once it has undergone probate.
Usually, an executor or estate trustee will work with a lawyer with the probate procedures and processes.
A clarification about the Certificate of Appointment. As mentioned earlier, the outcome of probate or ‘probating an estate’ is a Certificate of Appointment. The Certificate of Appointment is usually a one-page document which the Ontario Superior Court provides, which certifies the appointment of the executor.
Obtaining a Certificate of Appointment is not, generally, the process for appointing an executor. Where there is a will, the executor’s appointment comes from the will. In instances where there is no will, an executor may be appointed via applying for a Certificate of Appointment.
In the first instance, the executor may be required to obtain a Certificate of Appointment, as the Land Registry Office will generally not permit an executor to transfer or sell a Testator’s real estate, without first obtaining a Certificate of Appointment.
In the second instance, the executor may be required to obtain a Certificate of Appointment to satisfy either the bank or investment firm, which currently holds the Testator’s financial assets, before they will hand over the money to the executor.
There are some exceptions to the scenarios above which may exempt an executor from needing to obtain a Certificate of Appointment. These exceptions should be assessed on a case-by-case basis by a lawyer.
Where a Certificate of Appointment is required, the executor must value the assets owned by the Testator, complete the necessary Court application documents, and pay estate administration tax on the value of the assets. Estate administration tax is equal to approximately 1.5% of the value of the assets.
Where a Certificate of Appointment is not required, no application to the Court is necessary and estate administration tax is not payable.
If the deceased doesn’t have a will or for some reason the executor can’t be found or is unable to perform the executor role, then the courts will need to appoint an estate trustee or administrator.
An estate includes a person’s collective account of all their assets and liabilities, including their possessions and real estate at the time of their death.
The only person who has the legal authority to distribute or manage an estate in Ontario is the executor.
If a will doesn’t meet the probate requirements criteria (see criteria in this section), there shouldn’t be any issues with not probating a will. However, some executors elect to probate a will to ensure that the will they are using is authorized by the courts as the final version.
For wills that need to be probated, in addition to a serious legal liability for the executor, avoiding the probate process could also cause numerous administrative issues. In addition, the creditors and beneficiaries may take additional legal action for any errors or omissions.
In accordance with Ontario law, executors must probate a will if the estate meets the criteria required for probate. In addition to legal issues, the executor will encounter numerous administrative issues and challenges, including:
These institutions are risk averse and won’t risk transferring funds to the wrong person or accepting a version of a will that may be contested. A non-probated will has too many risks associated with it. Approved and probated documents (will) from provincial courts provide legal protection for these institutions.
If a person dies in Ontario without a will, Ontario law would declare them as ‘intestate’. Their estate may be distributed based upon the Succession Law Reform Act and provincial rules. This means that someone will need to apply to the Court to be appointed as the executor.
The court will need proof that no will exists. They will need to see ‘reasonable’ (and documented) searches for a will.
Unfortunately, there is no provincial central registry for a will in Ontario. This leaves the burden of ensuring the executor is aware of the existence of a will and its location, up to the testator.
We cannot stress this point enough, if your executor does not know that you have made a will and where it is, your estate could be processed on an intestacy basis.
If a ‘will’ doesn’t exist, then the courts will need to get involved and the estate will be distributed in accordance with Ontario’s Succession Law Reform Act.
The estate is defined by the assets and liabilities at the time of the testator’s death. The assets of the estate will be distributed based upon how they are owned.
In most cases someone will apply to the courts to ask for the authority to administer the estate (an estate trustee), usually someone who is a dependent upon the testator, someone who is owed money, or a relative. The applicant will need to apply to the courts, as detailed under Section #3, ‘What is Probate’.
If there are multiple applicants or a dispute, then the matter will be referred to by a judge who will determine the most appropriate person to act as estate trustee, usually the closest relative has the right to be executor or estate trustee. They are appointed by the courts with an application for a Certificate of Appointment of Estate Trustee Without a Will.
The courts and the Ontario government define an estate trustee as a person who is authorized and responsible for the affairs and possessions related to a deceased estate.
The estate trustee (often known as the executor) is the person who has been named in the will or has been appointed by the court when the deceased did not have a will. There are occasions when there are multiple trustees named in a will.
The role and responsibilities of the estate trustee includes the administration and management of the deceased last wishes as detailed in the terms of their last will and testament, (if a will exists), and in accordance with the laws of Ontario.
When a will is prepared, the testator can either retain the original signed will themselves or ask their lawyer to retain the original copy.
In either case, the lawyer should provide a copy of the will to the testator, and in instances where the lawyer retains possession of the original signed will, provide a reporting letter confirming the location of the original will. This letter should be kept by the testator and the named executor should be given the name of the lawyer and the location of theses documents.
Perhaps the executor named in the will has also passed away or is unavailable.
When the testator asks a trusted person to be their executor, the testator may have provided the details of the will’s location and the lawyer named who prepared the will to the original executor. Contacting the family of the previous or original executor and requesting them to check the executor’s files may assist in its location.
The location of the will, and the lawyer who prepared the will, should be given to the executor, (preferably in writing), to the executor.
If a will is known to exist and the location is unknown, all efforts should be exhausted to locate the will.
These search efforts need to be documented, and the documentation provided to the court.
If the will cannot be found, but a copy is retained, the executor can apply to the court to have the court recognize the copy of the will, as the valid last will and testament. In such instance, the court will review evidence from friends, family and professionals and decide as to whether the copy of the last will, reflects the deceased last wishes.
There may be instances when ‘proven’ handwritten documents are used, provided they are written in the deceased 100% actual handwriting and have been signed and dated by the deceased. These wills may be interpreted and considered as a ‘Holographic’ will.
Reasonable efforts and searches will need to be taken to ensure that no will exists. A lawyer can help with the searches and ‘reasonable effort’
If the will can’t be found, or a ‘will’ doesn’t exist, then the next steps would be for a related individual to apply for a Certificate of Appointment (probate), to become appointed the executor of the estate, on an intestacy basis, under the ‘Succession Law Reform Act.’
We’ve covered a great deal of information over these five topics.
And as you can appreciate, there are many different facets, legal and financial hurdles, and unique circumstances that can make the role of an executor somewhat chaotic and overwhelming.
We structured this guide based upon the real-world experiences which we’ve had with our own clients and included additional supplemental research from other useful sources.
When our clients approach us for executor assistance, it’s usually soon after the death of a family member or close friend. The questions they are most challenged with are:
Whether a family member or close friend has requested you to be their executor, you don’t have to go through this process on your own. And it’s probably not a good idea to be isolated with this role, especially if you are also grieving.
An estate allows you to utilize professional resources, like a lawyer, accountant, or financial advisor, etc. These resources can help guide (and help protect you) you through this challenging role.
We trust that this guide will provide some direction and value while performing this important role.
We’ve included one of our previous blog posts which may also be of interest to you.
‘Powers of Attorney and Wills: 8 Estate Planning Tips in a Post-Pandemic World’
If you would like additional information about Nichols Law, please visit our website.
Sources and links are provided for source credit and attribution, and for additional information purposes only. Nichols Law is not affiliated, associated, authorized, endorsed by, or in any way officially connected with any of the sources or links provided.
What Is Probate? Plus 15 Other Will and Probate Questions Answered, Sun Life
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