In your will, the executor is the person you name to settle your estate after your death. The executor is responsible for, among other things, determining what your assets and liabilities are at the time of your death, safeguarding those assets until they are distributed to the beneficiaries, paying your debts and filing your tax returns. They are also required to gather information about your beneficiaries and family members, including confirming legal names and addresses and identifying anyone under the age of 19. Your executor will apply for a grant of probate if one is required and ultimately distribute your assets according to your wishes.
It is important to choose your executor carefully to make sure your estate is settled efficiently and effectively. An ideal executor is someone who is organized, will deal with your assets and relatives objectively, and has loads of patience. Having an executor who lives in the same area as you is helpful but not necessary. It is also important that your executor survives you and has capacity at the time your will comes into effect.
Before appointing someone as your executor in your will, it is good practice to confirm that he or she is able and willing to take on that role. An alternate executor should be appointed in case the first executor can’t act.
There are a few circumstances where the intended executorship might fail:
1. If you die before you have prepared a will, it is called dying intestate. The court must appoint someone to administer your estate. The court will look to who has the most interest in the estate – typically your closest surviving family member. (For more information on dying intestate, see Dying Without a Will
2. If the executor named in your will declines, dies or is incapable of taking on the role, and you have no surviving or willing alternate executors, the court must appoint someone to administer your estate in accordance with your will. This person might not be permitted to act as administrator without posting an estate bond to protect creditors and beneficiaries who minors or incapable in the event the estate assets are administered improperly.
3. If your sole or last surviving executor (“Your Last Executor”) received a grant of probate and then becomes incapable or dies before finishing his or her duties, the executor appointed by Your Last Executor in his or her will may be in a position to take over the administration of your estate. This is called the “chain of executorship” and it will not apply to all cases where Your Last Executor can no longer act before the administration of the estate is completed.
4. The chain of executorship is broken if Your Last Executor left no will or did not appoint an executor or has no surviving willing and able executors. In those circumstances, the person with the most interest in your estate – typically a beneficiary – can apply to be substituted as the administrator of your estate.
Be sure to review your will regularly and be aware of the health and personal circumstances of your primary and alternate executors. If one or all of your executors are no longer able to act, make arrangements to update your will.
Krystin Kempton is a Partner at Nixon Wenger LLP where she has a general solicitor’s practice, advising corporate and individual clients on corporate and commercial transactions, lending and borrowing, wills and estates and real estate matters.