The executor (aka the “personal representative”) is the person named in the Will to manage and administer the estate. For most executors, it is their first time being named as executor. If you have been named as the executor you might be feeling overwhelmed, and you might be wondering where to start.
The first thing you should do is decide whether to take on the role of executor with its corresponding duties and responsibilities.
People often skip this step, maybe because they don’t realize that they can choose whether to accept or reject the appointment as executor. You are generally able renounce your appointment as executor as long as you have not “intermeddled” with the estate (intermeddling means you have acted as if you are the executor or have presented yourself as the executor).
Assuming you have not “intermeddled” and are still free to accept or renounce your appointment as executor, here are some of the factors you might want to consider in making that decision:
Duties and Responsibilities. As the executor, you would have quite onerous duties and responsibilities, duties and responsibilities. Your main duties as executor would be (1) identify the estate assets and liabilities, (2) administer and manage the estate, (3) satisfy the estate’s debts and obligations, and (4) distribute and account for the administration of the estate.
Personal Liability. As executor, you could be personally liable for certain things: breach of trust, mismanagement of estate assets, failure to pay the deceased individual’s taxes or the taxes of the estate, just to name a few.
Estate Solvency. If the estate does not have enough assets to pay its debts and liabilities, your job as executor becomes much more complicated and difficult.
Complexity of the Will. Some Wills are easier to administer than others. Look at the complexity of the Will. If the Will creates one or more trusts, consider the terms of the trust, the length of the trust and the age of the beneficiaries.
Time, Resources and Expertise. Do you have the time, resources and expertise to personally carry out the executor’s duties? Certain functions can be delegated to others and professionals can be retained to assist, but the general obligation is on you as executor.
Relationship with Beneficiaries. Family dynamics are often amplified in an estate situation. If there is a good chance of fighting or contention, you may want to rethink your decision to act as executor.
Compensation: You are entitled to compensation for acting as executor (it’s a lot of work!) but depending on the circumstances of the estate you may in fact receive little or no compensation.
What if you don’t want to be executor?
If you decide you do not want to act as executor, you can “renounce” the appointment. There is a special form that you must complete and sign, and that renunciation form is included with the application for probate that the new executor will submit to the court. Ignoring your duties and not applying for probate does not necessarily get you out of the job.
If you want to wait to decide whether to act as executor or renounce, you may be able to reserve your right to participate in estate administration by filing a special form with the court.
In other cases, the person with first priority to apply for a grant of administration (i.e., used if none of the executors are able or willing to act, or if the person died without a Will) may be able to nominate someone else and pass the first priority to that person.
Questions about being the executor? Contact us for more information.