Executor of a Will
An executor is the person who carries out the instructions in a will. They are chosen by the testator to manage their estate after they have died. The executor can be a person or trust company.
The executor is responsible for:
- arranging the testator’s funeral,
- taking control of all the testator’s property, documents, and accounts, and making a list of them,
- having the estate probated, if necessary,
- paying the debts of the estate, and
- distributing the estate to the beneficiaries.
Being an executor is a serious responsibility that can take a lot of time. Some estates are easy to administer, while others are more complex. All estates must follow the laws of New Brunswick, including:
- Wills Act
- Probate Court Act
- Devolution of Estates Act
- Provision for Dependents Act
There may be other laws that affect the estate, including tax laws. A wills and estates lawyer can help you understand your obligations as an executor. If you hire a lawyer, you can pay their fees from the estate.
When someone dies and their will does not include all of their property, this is called partial intestacy or dying partially intestate. In this case, the property that is included in the will is managed according to the will. The property that is not included in the will is managed according to the Devolution of Estates Act.
The executor will manage the property that is included in the will. But someone must apply to Probate Court to appoint an administrator to manage the rest of the property. The executor cannot manage the property that is outside the will unless they are also the administrator.
See our section about dying without a will for more information about intestacy.
When someone asks you to be their executor, you can say yes or no. You can change your mind at any time during the person’s life. If you change your mind, you should tell them so that they can change their will to name a new executor.
After the person dies, you can still refuse to be their executor, even if they chose you in their will. You do not have to go to court, as long as you do not start acting as executor. As soon as you refuse to be the executor, your rights and responsibilities of executorship end. However, if you have started acting as an executor and then change your mind, it is more complicated.
How to stop being the executor after you have started managing the estate
Once you have started to act as the executor, you cannot simply quit by refusing to continue. By starting the executor’s duties, you become legally responsible for all of the executor’s tasks. To stop being the executor, you must submit a renunciation in writing to the Probate Court. You must submit Form 2AA and an affidavit of execution.
The executor must plan the testator’s funeral. If the testator has given you funeral instructions or written them in the will, you should follow those instructions. If they did not leave funeral instructions, the executor has the right and responsibility to make decisions about the funeral. Where there are no instructions, the executor can also allow the testator’s family or friends to choose the funeral arrangements. The costs of the funeral are paid from the testator’s estate.
You should find and carefully read the original will as soon as possible after the testator’s death. This should help you begin your duties like:
- notifying next of kin and heirs,
- securing property and other goods,
- making special arrangements for any perishable goods,
- deciding what you need to do to meet the immediate financial needs of dependents, and
- deciding how much money will be needed to manage the estate.
Executors can be held legally and financially responsible for mistakes that they make.
As the executor, you must act in the best interests of the estate. You can be held personally responsible for any losses suffered by the estate that were caused by your carelessness or fraud. For example, if you make reckless investments or spend money in a way that isn’t allowed, then you could be held responsible and you may have to repay the money yourself.
This doesn’t mean that everyone must agree with your decisions as executor. But you must be reasonable careful about making good decisions that follow the will and follow the law.
There is no strict rule about how long an executor can take to complete your duties and close the estate. Usually, the courts say that you should close the estate within one year.
It takes time to do all the steps in an executor’s duties. Make sure you understand the process as early as possible. You may need time to find all of the beneficiaries.
If the executor takes too long to close the estate, the beneficiaries can apply to the Probate Court for help. The Probate Court can make an order that forces the executor to close the estate in a timely manner.
Any beneficiary of a will can apply to the Probate Court to ask the executor to show how they have administered the estate. Usually it requires the executor to submit the accounts of the estate to the Court for review.
In simple estates, the beneficiaries often sign a “release” which gives up their right to ask for an accounting of the estate from the executor. If you have signed this kind of release, you usually cannot go to Probate Court to get the accounting of the estate. However, any beneficiary who has not signed a release can still do so.
If you are concerned about the accounts of an estate, a wills and estates lawyer can help you decide what to do.
Your duties as executor end immediately when the estate is completely settled. This normally means when all the debts of the estate have been paid, including income tax, and when the testator’s property has been distributed completely to the beneficiaries.
In rare cases, you may need to reopen the estate after you have closed it. For example, if money or property is discovered after you have closed the estate. The estate can only be reopened until 15 years after the testator’s death.
If you act improperly as the executor, the Probate Court can remove you from the position.
Any interested party can apply to the Probate Court and ask them to remove an executor from their position. The interested party must show that the executor committed a fraud or acted in an unreasonable way that has caused a loss to the estate.
If you are concerned about fraud or how an executor is managing an estate, you should talk to a wills and estates lawyer for advice.
As executor, you can and should get help from a professional if you are not sure how to manage a part of the estate. This could include an accountant, an appraiser, a lawyer, or anyone other professional whose services you need. You can use money from the estate to pay the professionals’ fees, as long as those fees are reasonable.
A lawyer may be able to help you with:
- understanding the meaning of the will,
- understanding your duties as executor,
- preparing deeds and other documents to transfer money or property,
- setting up a trust,
- applying to Probate Court where necessary,
- preparing receipts for inheritances delivered, etc.,
- registering assets in the name of the beneficiary.
Being an executor takes time and work. You have the right to be paid for your services as an executor. You should discuss your payment with the testator when they ask you to be executor. They should write your payment details in the will, to avoid confusion.
If the will does not have details about paying the executor, you can apply to the Probate Court to be paid out of the estate. The Probate court will allow you to pay yourself a reasonable fee.
You must pay taxes on the payment you receive for being an executor.
You do not have to take payment to be the executor. For example, family members will often agree to manage an estate without being paid. Whether you are being paid or not, you also have the right to be reimbursed for all reasonable expenses you incur while administering the estate. This could include travel costs, filing fees, professional fees, document request fees, and more.