Selecting an executor is one of the most significant decisions you will make during the estate planning process. In British Columbia, an executor (also known as a “personal representative”) derives their authority from the will immediately upon the will-maker’s death. Their role is pivotal to ensuring your wishes are honored and your affairs are managed correctly under the Wills, Estates and Succession Act (WESA).
The Role and Core Duties
The responsibilities of an executor are substantial and require diligence. Once appointed, their primary duties typically include locating and safeguarding the original will, notifying financial institutions and other stakeholders, and securing the estate’s assets. Beyond the initial administration, they are responsible for:
- Determining and paying debts and funeral expenses in the statutory order of priority;
- Filing the deceased’s tax returns (terminal, prior year, and trust returns) and obtaining tax clearances;
- Managing or selling estate property, such as real estate, subject to the terms of the will; and
- Distributing the estate to beneficiaries and managing any trusts created by the will.
It is important to note that executors must also comply with strict statutory notice requirements before applying for probate and must navigate limitation periods, particularly regarding potential wills variation claims under WESA.
Who Can Serve?
To serve as an executor in BC, a person generally must be an adult (age 19 or older) and mentally capable of managing their affairs. While a beneficiary can also serve as an executor, you must ensure your choice is practical. For example, while bankruptcy is not an automatic statutory bar to probate, it can disqualify a person from acting as a trustee and is a factor courts may consider.
Family vs. Professional Executors
Most people choose a spouse, adult child, or trusted friend because of their familiarity with the family and the potential cost savings. However, appointing a family member can bring challenges, including emotional stress and the risk of conflict between relatives.
Alternatively, you may appoint a professional executor, such as a trust company or an experienced lawyer. This option offers neutrality and expertise in tax and accounting, though it comes with costs. In BC, executor remuneration is subject to court oversight or the terms of the will, often calculated as up to 5% of the capital value plus management fees.
Appointment Strategies: Single, Joint, and Alternates
You may appoint more than one executor to divide the labor or ensure fairness among children. However, keep in mind that under BC law, co-executors must act jointly unless the will states otherwise, which can sometimes lead to delays or disagreements. A common best practice is to appoint a single primary executor with at least one alternate (successor) who can step in if the primary is unable or unwilling to act.
BC-Specific Considerations
Finally, there are several procedural nuances specific to British Columbia that your executor must handle:
- Probate Necessity: Not every estate requires probate, but it is almost always required to transfer registered land or substantial financial assets.
- Wills Variation: Spouses and children have 180 days after the grant of probate to commence a wills variation claim. Prudent executors often delay final distribution until this period expires to avoid personal liability.
- Control of Remains: The executor generally has the legal authority to decide on the disposition of your remains unless your will or a written contract states otherwise.
Selecting an executor requires balancing legal eligibility with the practical reality of your estate’s complexity. However, it is important to remember that every situation is unique, and what works for one estate may not work for another. Please consult with Northam Law Corporation for your wills and probate needs to ensure your estate plan is tailored specifically to your circumstances. Call 604-630-2350 or email melissa@northam-law.com.
** The information in this article is for general informational purposes only and does not constitute legal advice. Laws can and do change over time and every legal situation is unique. You should consult with a qualified legal professional, such as the team at Northam Law, to obtain advice tailored to your specific circumstances before making any decisions.
Related Articles:
Appointing an Executor in British Columbia
Handling A Deceased Person’s Debt
Navigating the Complexities: Issues Concerning Multiple Wills in British Columbia