Choosing Your Executor for Your Will: A Guide by Jay Chauhan*
Choosing an executor for your will is one of the most important decisions you can make in estate planning. This person will be responsible for ensuring that your wishes are carried out precisely as you intended. Given the significance of this role, it is crucial to select your executor with great care and to discuss the responsibilities with them before finalizing your will with your lawyer. Here are some key considerations and steps to help you make this important decision.
Understanding the Role and Responsibilities of an Executor
- Legal and Financial Duties: The primary role of an executor is to carry out the distribution of your estate according to the terms specified in your will. This involves managing the estate's assets, paying off any debts, and distributing the remaining assets to the beneficiaries. The executor must exercise personal judgment and integrity in making decisions, and carry out decisions as stated in the will.
- Trust and Familiarity: It is essential that the executor understands the family dynamics and values. This familiarity ensures that he can make informed decisions that aligns with your wishes as stated in the will and the best interests of the family of the deceased. For example, if your will establishes a trust for the education and welfare of your minor children, the executor must prudently decide how to use the funds for their benefit and specifically the university or college education.
- Communication with Guardians: If your will appoints a guardian for your children, the executor should maintain open communication with the guardian to ensure that the children's needs are met appropriately. This collaborative approach helps in making decisions that are compassionate and family-oriented.
- Estate Management: The executor's legal role extends to being a trustee of the estate funds. They are responsible for managing the sale of property, if necessary, and ensuring that the proceeds are distributed according to the will. If a trust is created, the executor's role as a trustee begins, overseeing the trust until it is transferred to the appointed trustee. If the executor cannot carry out his duties, it is his responsibility to help appoint another executor to distribute the estate.
- Accounting and Legal Obligations: Executors must provide a clear accounting of the estate’s finances. This includes opening a separate estate account in the name of the deceased, documenting all expenses and income, and ensuring that the final distribution leaves a zero balance in the specific account. Beneficiaries must agree on the distribution and release the executor from their duties, or the court may require a formal accounting if an application is made.
- Seeking Professional Advice: Given the complexity and legal obligations, it is advisable for executors to seek guidance from lawyers and accountants. While a lawyer can advise on legal matters, the executor remains responsible for the estate's accounting. Professional advice ensures compliance with legal standards and proper fulfillment of fiduciary duties.
Steps to Choose and Appoint an Executor
- Identify Potential Candidates: Consider individuals who are trustworthy, responsible, and familiar with your family values and dynamics. This could be a close family member, a friend, or a professional fiduciary, such as a trust bank.
- Discuss the Role: Before making your decision, talk to the potential executor about the responsibilities and ensure they are willing and able to undertake the role.
- Consult Your Lawyer: Once you have chosen an executor, inform your lawyer to include his name in your will as an executor. Your lawyer can also provide advice on any specific instructions or considerations related to your estate plan. A lawyer guides and advises the executor but the responsibility remains that of the executor.
- Provide Clear Instructions: Ensure that your will is clear and detailed, minimizing the need for the executor to make discretionary decisions. This clarity helps prevent misunderstandings and disputes among beneficiaries.
- Prepare for Future Guidance: Encourage your executor to seek ongoing legal and financial advice throughout their tenure. This support helps them manage the estate effectively and in compliance with legal requirements. In many estate matters clients often fail to consult the lawyers to the conclusion of the matter which is passing of accounts or release of the executor.
Choosing the right executor is crucial for the smooth administration of your estate. By selecting someone who understands your values and family dynamics, and ensuring they are well-informed and supported, you can have peace of mind knowing that your estate will be managed and distributed according to your wishes. Taking these steps not only protects your legacy but also provides clarity and support for your loved ones during a challenging time.
If you do not write a will the property will be distributed to the next of kin under the rules of intestacy where the nearest relative get the estate or portion of the estate. If there is no will ?unclaimed funds in banks can end up with the Bank of Canada. ??
*Jay Chauhan is a retired Deputy Judge and a lawyer in England, India and Canada and writer with award from Ethnic Journalist Association.
