In British Columbia, a will-maker (testator) has the crucial responsibility of appointing one or more executors in their will under the Wills, Estates and Succession Act (WESA). The executor plays a vital role, being responsible for administering the deceased’s estate according to the instructions in the will and the law. To qualify, an executor must be at least 19 years old (WESA, s. 40), be mentally capable of managing the estate, and not be an undischarged bankrupt or otherwise legally disqualified. A will can designate a single executor, multiple co-executors, and/or one or more alternate executors to step in if the primary choice is unable or unwilling to serve (WESA, s. 7). The core duties of an executor include applying for probate (if necessary), identifying and securing all estate assets, paying off debts and taxes, and finally, distributing the remaining assets to the beneficiaries.
A person named as an executor is not obligated to accept the role. If they choose not to serve, they can formally renounce the appointment by filing a Renunciation (Form P17) with the court, provided they haven’t “intermeddled” in the estate, meaning they haven’t taken any steps to administer its assets (WESA, s. 104). Once an executor has begun acting, their removal can only be achieved through a court order. If an alternate executor was named in the will, they can then apply for probate. However, if no alternate is named, another interested person may need to apply to be appointed as an administrator with the will annexed.
There are situations where no executor is named or able to act. This can occur if the will doesn’t name an executor, if the named executor(s) renounce, die, or are unwilling/unable to serve, or if there is no will at all (intestacy). In such cases, an interested party must apply to the BC Supreme Court for a grant of administration. The court will then appoint an administrator following a specific priority order set out in WESA, s. 130. This priority typically begins with the surviving spouse or their nominee, followed by adult children (with majority consent), other family members (with majority consent), creditors or other interested parties, and finally, any other person the court deems appropriate, including the Public Guardian and Trustee (PGT). The court may also require the administrator to post a security bond, particularly if there are minor or incapable beneficiaries or if the applicant does not reside in BC.
If, after all these considerations, no individual is willing or able to act as executor or administrator, the Public Guardian and Trustee of BC (PGT) may be appointed. This typically occurs if there are minor or incapable beneficiaries, if the estate is at risk, or if no one else is available to manage the estate (WESA, s. 164). It’s important to note that the PGT charges fees for their estate administration services.
For will-makers, there are several best practices to ensure a smooth estate administration process. It is crucial to choose a responsible and willing executor and to discuss the appointment with them in advance to confirm their willingness to serve. Always consider naming an alternate executor to provide a backup. Regularly update your will if your chosen executor becomes unavailable, and review your will periodically to ensure it continues to reflect your current wishes and circumstances.
Some additional points to consider include that executors are entitled to compensation, typically up to 5% of the gross aggregate value of the estate, plus an annual care and management fee of up to 0.4% (Trustee Act, s. 88). An executor may also be removed or passed over by court order for reasons such as incapacity, dishonesty, bankruptcy, or other serious issues (WESA, s. 158). Finally, a 210-day hold period after probate is issued must generally be observed before distributing the estate, unless all entitled parties consent or the court orders otherwise (WESA, s. 155).
Understanding the responsibilities and complexities of appointing an executor is vital for effective estate planning. For personalized advice and assistance, contact Northam Law today to schedule an appointment. You can reach us by phone at 604-630-2350 or by email at admin@northam-law.com.
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