WHAT AN EXECUTOR DOES

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Duties

This section sets out the specific steps you should take. Keep in mind that the steps you need to take in settling one estate might not apply to another, or the estate you are settling might have unique features that require special attention. A lawyer can help you follow the right steps in each case.

You should keep a diary of all the steps you take and decisions you make in administering the estate. Start at the date of death. For each item, record the date, what you did, the time involved in completing that step, and any expenses that you incurred personally.

You must keep a complete record of all expenditures and receipts because, unless you are the only beneficiary, as executor you must account to the other beneficiaries as to how the estate was administered before distributing the estate.

If you are doing this yourself without the assistance of a lawyer, this checklist will help you organize your duties and keep track of what you have already done:

What to Do When Someone Has Died: A General Checklist

First Steps

 Record the date of death
 Record all decisions made, steps taken, and financial transactions
 Consider contacting a lawyer regarding general estate questions
 Contact the BC Vital Statistics Agency: [1]

The death certificate may be obtained by your funeral services provider, or you can order a death certificate in several ways:
  • at the Vital Statistics Agency online,
  • by calling 250-952-2681 (Victoria) or 1-888-876-1633 (toll-free),
  • in person at 818 Fort St., Victoria, B.C. V8W 1H8; 101-1475 Ellis St., Kelowna, B.C. V1Y 2A3; Room 250, 605 Robson St., Vancouver, B.C. V6B 5J3, or
  • by mail to Vital Statistics Agency, PO Box 9657 Stn Prov Govt, Victoria, B.C. V8W 9P3

 Review the will, if there is one
 Determine who will act as executor (or administrator, if there is no will) of the estate

Arranging the Funeral and Death Benefits

 Call the Memorial Society of British Columbia at 1-888-816-5902 if the deceased was a member (or to ask if the deceased was a member)[2]
 Contact a funeral service provider to make funeral arrangements
 Consider publishing an obituary (typically in the Vancouver Sun and Province)
 Aboriginal persons: if the deceased was a member of a First Nation living on a reserve, Aboriginal Affairs and Northern Development Canada operates a Decedent Estates Program to help settle the estates of Aboriginal persons, including providing an executor or administrator
 Life Insurance: contact life insurance company to obtain benefits, if applicable
 Military service: there may be various programs available to provide funeral coverage, pension and benefit assistance to the family and survivors of veterans or military personnel
 If the deceased was receiving a disability pension, family members may be eligible for a survivor’s pension [3]
 Funeral assistance, including financial assistance with the funeral and grave marking, may be available through the Last Post Fund [4]

If the deceased died within 30 days of being injured while on active military service, a death benefit [5] may be payable to the surviving family members

 You may need to contact Medical Services Plan to cancel MSP health insurance coverage
 MSP records are generally updated automatically if the deceased passed away in BC. [6] If the deceased passed away outside BC or was covered under a self-administered MSP account, contact MSP[7] directly or visit a Service BC location.[8] You may be able to submit a change of account information online : you will need to provide the person's name, birth date, personal health number, and the date of death
 Contact Canada Post to forward mail, if applicable
 Federal government benefits: call Service Canada to notify them of the death; they can answer questions about the Canada Pension Plan, Old Age Security and related pensions, and some benefits that may be available after death [9]
 Provincial government benefits: if the deceased was receiving the Senior’s Supplement, a housing subsidy, worker’s compensation, or other provincial benefits, contact Service BC[10] or the individual agencies set out in the Service BC Bereavement Checklist[11]
 Benefit plans: if the deceased received pension benefits or extended health and dental benefits from a workplace or privately funded plan, contact the plan administrator to advise of the death and to determine eligibility for survivor benefits or continued benefit coverage for dependants
 Driver’s licence: cancel the deceased’s driver’s licence at a local driver licensing office or by mailing a copy of the death certificate and the driver’s licence to:

ICBC Licensing Unit

PO Box 3750

Victoria, BC, V8W 3Y5

 Passport: cancel the deceased’s passport. The passport should be returned to Passport Canada by registered mail with a copy of the death certificate and a letter indicating whether you wish the cancelled passport to be destroyed or returned to you:

Passport Canada

Foreign Affairs Canada

Gatineau, QC, K1A 0G3

 Social Insurance Number: cancel deceased’s Social Insurance Number by returning the SIN card along with a copy of the death certificate to Service Canada. You can either bring it to the nearest Service Canada Centre or send the documents by registered mail to:

Service Canada

Social Insurance Registration Office P.O. Box 7000

Bathurst, NB E2A 4T1

 If you do not have the SIN card but do know the number, send proof of death with the SIN clearly written on it.

Administering the Estate

 Consider contacting a lawyer regarding procedures for probate or letters of administration
 Locate estate assets and, if applicable, safety deposit box
 Secure estate assets and ensure that adequate insurance coverage is in place
 If there is a will, apply to the court for a grant of probate; if there is no will, apply for letters of administration
 Notify hydro, cable, telephone and other utilities to change the name on their accounts, forward the bills, or cancel the services provided
 Keep in mind that some accounts may be billed online, so you might not be able to identify all accounts just be searching for paper statements mailed to the deceased

  • If the deceased had an e-mail address, check for statements or accounts sent to the deceased by e-mail

 Automobile Registration and Insurance: contact ICBC (through an Autoplan broker) or the deceased’s private insurer, if applicable, to cancel or change car insurance

  • Depending on who will be the new vehicle owner, you may need to provide a certified copy of the death certificate, a certified copy of the will, and possibly a letter from your lawyer or a certified copy of the estate grant
  • If the deceased leased a vehicle, contact the lessor

 Financial Institutions: contact banks and other financial institutions to remove the deceased’s name from joint accounts or to transfer accounts held solely by the deceased into the name of the estate

  • In searching for accounts, keep in mind that some accounts may not send paper statements, and the deceased may have held accounts for which statements were sent to an e-mail address

 Credit Cards: contact credit card companies to remove the deceased’s name from accounts or to cancel them
 Real Property: search for property held or rented by the deceased

  • If the deceased owned real property registered in the Land Title Office, change the name on title
  • If the deceased was a tenant, contact the landlord to arrange for vacating the property, terminating the lease, and final accounts
  • If the deceased was a landlord, locate a copy of the lease and contact the tenant(s) to arrange for continued rental payment and property management, or vacating the property, subject to the terms of the lease and the relevant laws

 Publication of Notice to Creditors: contact the BC Gazette at 1-800-663-6105 to arrange for publication of the notice
 Debts and Claims against the Estate: examine debts and claims against estate

  • Seek legal advice in defending any legal action against the estate of the deceased
  • Pay debts owed by the deceased

 Income Taxes: Look online at the Canada Revenue Agency’s “What to do when someone has died,” web resource, and contact an accountant to file required income tax returns and apply for clearance certificate(s).

Winding Up the Estate

 Accounting to Beneficiaries: prepare detailed accounting of payments made in administering the estate and obtain approval from beneficiaries or the court
 Distribute Assets of Estate: distribute personal and household effects, pay legacies and distribute estate to beneficiaries according to terms of the will (or, if there is no will, according to the order of intestate succession as prescribed by the Wills, Estates, and Succession Act (WESA), ss. 20-23)

Funeral Arrangements

The executor takes responsibility for the funeral. Where the will sets out the deceased’s wishes as regards funeral, interment or cremation, those wishes are binding on the executor, who must respect those wishes unless they are unreasonable, contrary to law, or cause undue hardship. If the executor is unwilling or unable to instruct the funeral service provider, the spouse may. There is a list prescribed by law of the people who can instruct a funeral service provider, if the executor is unable or unwilling to do so.

To pay the funeral expenses, you could take the invoices to the bank where the deceased kept an account. If there’s enough money in the account, the bank will give you funds to cover the expenses.

If there isn’t enough money to cover the funeral expenses, there may be funds available through the Last Post Fund or Veteran’s Affairs if the deceased was a veteran, or from the Province of BC as a funeral supplement (they may seek repayment).

Death Certificate

When you choose a funeral service, the funeral director will usually help you order copies of the death certificate.

If you elect to do it yourself, you must first register the death. Contact the Vital Statistics Agency (250-952-2681 in Victoria, or 1-866-876-1633 toll-free), or go to their website (www.vs.gov.bc.ca), or go to any Service BC location.

Notice to Creditors

It is not mandatory to publish a Notice to Creditors in the BC Gazette. Publishing the notice does not let the beneficiaries avoid valid claims by creditors, but it does help the executor to distribute the estate after settling all the claims against the estate.

It also protects executors from liability. Executors who publish this notice are not liable to creditors who fail to respond within the time specified in the notice. The time specified for a response must be no less than 30 days after publication of the Notice to Creditors. After that period expires, you can distribute the estate.

Contact the BC Gazette to publish your notice in Part I, which is published weekly. The cost is $60.80 for the first publication, and $31.30 for each subsequent insertion.

If you are sure that you know all the creditors who may have claims against the estate, then you may decide to save the expense of advertising. If you are not only the executor but also the only beneficiary, the expense is likely not warranted.

Here is a link to the online form to fill out, and here is a sample form.

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Flow Chart of Executor’s Duties and Responsibilities

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Getting a Lawyer

Administering an estate involves some legal matters, so you should get a lawyer. The lawyer’s fees will generally be paid by the estate. Certainly if the estate includes real estate, trusts, or foreign assets, or if there could be conflict among the beneficiaries, get a lawyer’s help as soon as possible. Lawyers who help executors administer estates are also called solicitors.

Specifically, the legal work in the administration of an estate involves first locating the will and searching for any wills notices. The lawyer reviews the will and advises the executor whether it is valid and what its terms mean. If the deceased died without a will, the lawyer provides advice about who is the next of kin, who is entitled to apply to the court for letters of administration, and who is eligible to inherit.

The lawyer can also deal with advertising for creditors (as discussed above). Legal advice will be important if any claims are disputed or there is any conflict between the creditors or beneficiaries.

The lawyer also conducts title searches for any personal property that may have been registered in the Personal Property Security Registry, and any real property owned by the will-maker registered in the Land Title Office. The lawyer will advise as to the title to these assets.

In addition to the legal tasks, a lawyer can also do some (or all) of the executor’s work. As executor you can decide whether you want to do all the executor’s work or you want a lawyer to help do part (or all) of it. A lawyer will need to gather and review a lot of documents about the deceased’s assets, liabilities, and relationships. You may be able to save time and expense by gathering these documents to provide to a lawyer.

Documents to Provide to a Lawyer

 the original will and any codicils (amendments) you have found;
grant of probate (if it has been issued, give the lawyer a copy certified by the court) or any foreign grants of probate that need to be submitted for resealing, or any ancillary grant (if applicable);
 any instructions about funeral arrangements or dealing with assets after the death of the deceased;
 the deceased's birth, marriage, and death certificates, and social insurance number;
 copies of any marriage agreement, separation agreement, divorce decrees and maintenance orders, if applicable;
 a list of banks or financial institutions where the deceased may have had accounts, safety deposit boxes, RRSPs, TFSAs, or other investments;
 names of any financial advisors, planners, or accountants the deceased consulted;
 bank books, cheque books, and financial statements or documents, up to the time of death;
 details of any bonds, stocks, and securities owned by the deceased;
 a list of real estate owned by the deceased, with the addresses and copies of the titles, if available, together with approximate values;
 details of any motor vehicles, boats, or large equipment owned by the deceased, including model, year, and registration numbers;
 life insurance policies, if applicable;
 copies of buy-sell agreements, partnership agreements, leases, employment contracts etc., if applicable;
 copies of the financial statements and particulars of any businesses or private companies in which the deceased held an interest, if applicable;
 list of contents of the deceased’s safety deposit box, if applicable;
 details of any other assets not listed above;
 a list of liabilities of the deceased, including funeral expenses, as detailed and complete as possible, together with approximate amounts;
 previous years’ income tax returns, preferably going back 7 years;
 an outline of the deceased's family tree, with relatives' names, ages, occupations, and present addresses, and
 a list of names of people who had significant relationships with the deceased who may be listed in the will.

Based on the information you provide, the lawyer will prepare affidavits and other court documents, including an inventory of the deceased’s assets and liabilities. These documents must be filed with the court as part of the application for a grant of probate. The lawyer will have you sign documents and then will file them in the Probate Registry of the Supreme Court. If necessary, the lawyer may appear in Supreme Court Chambers for a hearing associated with the application.

After the grant of probate is received, the lawyer prepares the documents necessary to transfer the deceased’s assets to you as executor. The lawyer ensures that the documents are properly executed, and then files them with transfer agents (in the case of securities) and the Land Title Office (in the case of real property). Once the assets are in your name, you may then transfer them to the beneficiaries or the next of kin, or sell them as the case may be. The lawyer prepares the documents for the transfer of real property, ensures they are properly executed, and files them for registration in the Land Title Office.

The lawyer assists you in preparing your accounts and prepares releases for the beneficiaries or next of kin to execute. By executing the release, the beneficiary or next of kin acknowledges receipt of his or her share of the estate, approves your accounts, and releases any claim that he or she may have against you or the estate. If it is necessary to pass your accounts as discussed above, the lawyer prepares and files in the Supreme Court Registry the necessary affidavits and court documents, attends in Supreme Court Chambers and at the hearing before the registrar.

Lawyer’s Fees

The lawyer may also be instructed by you to do some or all of your work as executor. The lawyer will be entitled to a fee for performing legal tasks, but if the lawyer also performs some executor tasks, the fee that you would be entitled to for performing those executor duties will go to the lawyer.

The fees lawyers charge are governed by law. Determining what legal fees are proper or reasonably necessary for the services provided depends on the particular circumstances:

  • The complexity of the proceeding and the difficulty or the novelty of the issues involved;
  • The skill, specialized knowledge and responsibility required of the lawyer, which may relate to the amount involved in the proceedings;
  • The time reasonably expended in conducting the proceeding;
  • The conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the proceeding;
  • The importance of the proceeding to the party who is paying, and the result obtained; and
  • The benefit the legal services provided to the party who is paying.

If you are not satisfied with the lawyer’s bill for fees when it is rendered, you may require the lawyer to have the bill assessed by a registrar of the Supreme Court. The registrar will determine if it is reasonable, considering the circumstances set out above.

The Law on Lawyers’ Fees

The law governing legal fees is set out in three main places:

  • Supreme Court Civil Rules, BC Reg 168/2009, Rule 14-1 (“Costs”)
  • Rule 25-13 (“Remuneration and Passing of Accounts”), and
  • the Legal Profession Act, S.B.C. 1998, c. 9.

If you receive a lawyer’s bill that causes you concern, you have a right to ask a registrar to review the bill.

A recent decision by Registrar Sainty discussed the grounds for reviewing a lawyer’s accounts to an executor, and found that beneficiaries as well as the executor will have a right to ask for a review of the lawyer’s accounts. The beneficiaries were in a position to indemnify the executor for expenses incurred, and so they were included among the parties who could request review of a lawyer’s bill under the Legal Profession Act, s. 70:

70 (1) Subject to subsection (11), the person charged or a person who has agreed to indemnify that person may obtain an appointment to have a bill reviewed before (a) 12 months after the bill was delivered under section 69, or (b) 3 months after the bill was paid, whichever occurs first

A review of a lawyer’s bill is different than a review as part of passing of accounts, where it is the executor’s fees that are being examined.

If You Proceed Without a Lawyer

If the estate is simple and there are no disputes, you might decide not to hire a lawyer. There are resources available to help you understand the process of starting a proceeding in the Supreme Court of British Columbia by petition and preparing for a hearing in court.

Keep in mind that it is usual to get a lawyer to assist with most estates. Even simple estates can involve complicated processes and legal forms.

Certainly if there is any uncertainty or dispute, you should get legal advice as soon as possible.

Risks

Claims Against Executors

Executors face risks and could be personally liable if they make mistakes:

  • if they distribute estate assets to the beneficiaries before all taxes are paid;
  • if they distribute assets to beneficiaries while other beneficiaries or creditors still have unresolved claims to those assets;
  • if they distribute assets to beneficiaries without making adequate efforts to discover or notify other possible beneficiaries or creditors.

In particular, an executor must notify a surviving spouse that he or she may have a right to the spousal home. If the executor disposes of the home without having provided proper notice, the executor may be liable.[12]

Executors may also face risks if they make poor choices in investing estate assets.

Executors also risk being liable for wrongful acts of the deceased person. In such a case, the executor would not be liable for any loss that exceeds the estate assets.

WESA s. 149 says, Liability of personal representatives 149 (1) A personal representative is liable, to the extent of the assets belonging to the estate that come into the personal representative's possession or control, for the wrongful acts and omissions or breaches of legal duty of the deceased person, subject to this or any other enactment to the contrary.

Executors may be required to defend claims brought against the estate, or they may be able to bring claims in the name of the estate (WESA, s. 150).

Avoiding Liability

An executor must make reasonable efforts to identify and notify possible beneficiaries. If the executor does make reasonable efforts, that executor will not be liable for any loss that occurs if a beneficiary is not actually notified (WESA, s. 121).

If the executor publishes a notice to creditors and a creditor fails to step forward by the end of the time specified in the notice, the executor is not liable for distributing assets without paying that creditor (WESA, s. 154).

If a will allows for more than one possible executor, an executor named in the will but who does not seek the estate grant will not be liable for how the other executor deals with the estate (WESA, s. 107).

Executor Fees and Expenses

As executor, you are entitled to be reimbursed from the estate for any out-of-pocket expenses you need to pay for the proper administration of the estate. That would include search fees, filing fees, and costs of delivering notices, for example.

You may also claim fees for your time and effort. Generally the maximum fee you can receive is 5% of the entire value of the estate. If you are the sole beneficiary, you wouldn’t likely claim fees, because they would be treated as income and be taxable for income-tax purposes. However, if you are dealing with a more complicated estate, you might choose to claim fees.

Reasonable professional fees (such as accountant fees or search fees) are proper estate expenses, and if you pay those fees personally, then the estate will reimburse you. However, if you engage a lawyer to perform your executor’s duties, the fees the lawyer charges to perform executor duties (distinct from legal work) must be paid by you personally, or must be deducted from the executor’s fee payable by the estate.

Executor Fees

The maximum fees executors can charge for time and effort spent administering an estate is 5% of the aggregate realized value of the deceased’s assets, 5% of the income earned on the estate assets during their administration, and an annual .4% “care and management” fee based on the average market value of the estate being administered.

The “care and management” fee is traditionally charged only when there is an ongoing trust for the executor to administer according to the terms of the will. Executor fees may be subject to GST and will be considered as income for tax purposes.

The Trustee Act sets out how much a trustee under a will is entitled to charge: 88 (1) A trustee under a deed, settlement or will, an executor or administrator, a guardian appointed by any court, a testamentary guardian, or any other trustee, however the trust is created, is entitled to, and it is lawful for the Supreme Court, or a registrar of that court if so directed by the court, to allow him or her a fair and reasonable allowance, not exceeding 5% on the gross aggregate value, including capital and income, of all the assets of the estate by way of remuneration for his or her care, pains and trouble and his or her time spent in and about the trusteeship, executorship, guardianship or administration of the estate and effects vested in him or her under any will or grant of administration, and in administering, disposing of and arranging and settling the same, and generally in arranging and settling the affairs of the estate as the court, or a registrar of the court if so directed by the court thinks proper.

Deciding Not to Be Executor

If you haven’t started dealing with any of the estate assets, you don’t need to act as the executor. If you have started dealing with assets, you are legally bound to continue, and can only be relieved of the task by a court order discharging you.[13]

To renounce your appointment as executor, file Form P17: Notice of Renunciation.[14]

If the documents required for an estate grant have not already been filed, you will also need to file them with your renunciation.

There are other ways you may be relieved of your duty as executor. You may be deemed to have renounced the appointment. Or you or another party may apply to the court asking that you be removed[15] by a court order. If the entire grant is revoked, the appointment of executor and authority to act as executor passes[16] as if it had never been granted.

Sometimes settling an estate can be difficult and stressful. If you find it too much to handle yourself, you can get a lawyer or a trust company to help you, or do it for you. Those expenses would be paid out of the estate. See Getting a Lawyer for the services a lawyer would provide.

Deemed Renunciation

Your appointment as executor may be renounced if one of the beneficiaries or a party interested in the will wants you to apply for probate and you fail to do so. If that party files a citation (Form P32) and you refuse to file for probate, or you fail to do so within six months, then you may be deemed to have renounced[17] your appointment as executor.

Resources

Online Resources

Legislation

Regulations and Forms

References

  1. [1] 1-800-663-7867 or apply online.
  2. [2]The Memorial Society is a non-profit society that assists with funeral arrangements for its members. When a member dies, they recommend nearby funeral providers and assist with the arrangements.
  3. survivor’s pension www.veterans.gc.ca
  4. [3] www.lastpostfund.ca
  5. 1-866-522-2122 (toll-free) or see www.veterans.gc.ca/services/financial/death-benefit
  6. [4] www.health.gov.bc.ca
  7. Telephone 1-800-663-7100 (toll-free) or 604-683-7151, or by mail at Medical Services Plan, PO Box 9035 Stn Prov Govt, Victoria, B.C., V8W 9E3.
  8. [5]www.servicebc.gov.bc.ca
  9. [6] www.servicecanada.gc.ca
  10. 1-800-277-9914 (toll-free)
  11. [7]www.servicebc.gov.bc.ca
  12. WESA, s. 27 [full text: http://canlii.ca/t/8mhj]
  13. WESA, s. 157 [8]
  14. www.ag.gov.bc.ca
  15. WESA, ss. 157-161, Part 6, Division 9: Discharge, Removal and Substitution of Personal Representatives
  16. WESA, s. 141 [9]
  17. Rule 25-11(5) [10]
  18. www.supremecourtbc.ca [11]
  19. www.bcheritagelaw.com
  20. www.supremecourtbc.ca [12]
  21. www.lawsociety.bc.ca [13]
  22. www.lawsociety.bc.ca [14]
  23. www.publiclegaled.bc.ca [15]
  24. www.canlii.ca [16]
  25. www.canlii.ca [17]
  26. www.canlii.ca [18]
  27. www.ag.gov.bc.ca [19]