Being asked to be an executor is an honour, but not one you have to accept.
All too often, executors accept the job without understanding the scope of the work, the complexity of the estate or the dynamic of the testator’s family — all of which can make the job more difficult.
Joni Metherell, a partner at Pushor Mitchell in Kelowna, B.C., says, “You might not think to ask question[s] because it seems like an invasion of that person’s privacy.”
But, “An executor ought to have a basic understanding of what assets they’re going to be asked to administer,” she says. Such knowledge should include what those assets are, and where they’re held. In addition, you should know whether the estate includes real property to be sold, rented and/or managed, and whether there are assets outside the jurisdiction of residence.
“Have a general idea of how much work is going to be involved before agreeing,” she says.
You should think twice about accepting if the testator’s finances are highly disorganized, he’s currently involved in a lawsuit, or he has a history of bankruptcy or unpaid taxes. And family is another factor you can’t overlook.
“A highly acrimonious family dynamic would be cause for concern,” Metherell says. “[You] could become a target for a lot of built-up anger and frustration.”
And even if such antipathy is groundless, the conflict can be time-consuming and draining. If you don’t know the dynamic, “ask the [testator] if he or she anticipates problems.”
A business-like approach
E. Jane Murray, a partner at Burke-Robertson LLP in Ottawa, suggests prospective executors ask questions that a corporate trustee would, such as, “How much are you going to pay me? What do you own? Who holds it, and how complicated is this going to be?”
Personal effects can also create problems. “The other large point [beneficiaries] fight over is sentimental items: paintings, furniture, jewelry,” Murray says. “If I were going to be an executor, I would want the testator to deal with that before they died.”
Testators can ask heirs to sign a list of who gets what and add it to the will. Or, they can describe in their wills how to resolve disagreements: by the flip of a coin, drawing lots or some other method.
She adds, “What’s really unfair to the executor is to say, ‘Use your discretion and distribute [assets] equally.’ Because there is no equal when you’re talking about sentimental value.”
Murray says you may want to decline the job in such cases. “If there are a large number of beneficiaries who do not get along well and a lot of valuable personal property such as jewelry and art, it could be a serious enough issue.”