The estate trustee, also known as the executor, is the person named in a will who will be responsible for administering affairs after the death of the testator (the person making the will). This person will ultimately be responsible for ensuring that the testator’s final wishes are respected. Choosing who to appoint as an executor is a critical decision which a testator must make during the estate planning process.
A testator needs to instruct his or her lawyer as to the person (or people, if more than one) who he or she wants to act as the executor of their estate.
It is possible that the person selected will predecease the testator or be otherwise unable to act as executor. It is therefore advisable to appoint a secondary executor to act in the place of the primary executor in the event that he or she is unable to act. It is also possible to appoint more than one executor (i.e. a group of 3) with an express statement that either the group of executors must act unanimously or by majority.
There are many considerations that go into the choice of executor, but frequently it is a trusted family member or close friend. Ideally, the person is able to handle business affairs (i.e. opening an Estate bank account, sell a house). If an estate is complex, it may be prudent to consider appointing a professional estate trustee, such as a lawyer or an accountant.
It isn’t essential that the person live in the same town as the testator, but it is more convenient. If the executor is an Ontario resident it eliminates the issue of the possibility of having to post a bond. Moreover, it is important to note that the executor can also be a beneficiary of the estate.
It is generally wise for the testator to consult with the person he or she has chosen as executor prior to finalizing the will. Not only is it courteous to do so, but making appointees aware of their selection by the testator at an early stage will minimize the likelihood of them declining the role when it comes time to act.
If the testator has any doubts about appointing a particular person as executor, these concerns should be raised with the testator’s lawyer as early in the drafting process as possible. Likewise, if a testator appoints an executor and later becomes uncertain or apprehensive about the person chosen, the testator should act without delay to meet with a lawyer in order to discuss amendments to the will. Doing so will not only increase the probability that the estate will be administered smoothly, but it will also provide the testator with peace of mind.
– Philip W. Augustine and Michael D. Heikkinen for abblaw.ca
[In next week’s Wills 101 blog, we will be discussing the fundamentals of powers of attorney for property and personal care. If you live in the Ottawa area and would like Augustine Bater Binks to prepare your will, please email us at info@abblaw.ca or call 613-569-9500 to speak to one of our lawyers or a member of our staff.]
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