Choosing an executor is one of the most important parts of creating a will. Understanding who or what can take on that role is just as important when you’re named as an executor or dealing with an estate. An executor is usually the person (or in some cases, an organization) responsible for carrying out the instructions in a will, handling the legal and financial details of the estate, and ensuring beneficiaries receive gifts. In BC, the law establishes who can and cannot serve as an executor, along with the role’s duties. These rules exist to protect the wishes of the deceased as well as protect their estate and its beneficiaries.
What Does an Executor Do?
The executor’s job begins after the will-maker passes away, and the main duties involve:
- Filing for the grant of probate to formally begin the estate administration process.
- Gathering and safeguarding assets such as bank accounts, property, investments, and personal belongings.
- Paying outstanding debts and taxes.
- Distributing assets to beneficiaries and stakeholders as directed by the will.
- Communicating with all appropriate parties concerning estate management.
Being an executor is time-consuming and often takes more than a year to complete, particularly if the estate is large or complex. It’s also highly detail-oriented, requiring the executor to follow provincial law and meet deadlines.
Executors are entitled to a fee worth up to 5% of the gross value of the estate, unless the will specifies a different amount or they choose to waive the fee. This fee is taxable and is in addition to reimbursing the executor for reasonable out-of-pocket expenses.
Who Can Be an Executor of a Will in BC?
BC’s Wills, Estates and Succession Act (WESA) governs who can serve as an executor. Rules established in this Act help ensure the person taking on the executor role is capable of handling the responsibilities.
An executor must:
- Be at least 19 years old.
- Be mentally capable of understanding and performing the duties.
- Be willing to accept the appointment. No one can be forced to act as executor, so the named individual does have the right to turn the role down.
Typically, the executor is a close family member or trusted friend who is already familiar with the will-maker’s final wishes. However, the law does not require any specific personal relationship between the executor and the will-maker. The executor can be a resident of BC, live in another province or territory, or even live outside of Canada, though out-of-country executors are not recommended.
Additionally, more than one executor is allowed in BC. Co-executors must make decisions jointly, which can slow the process and cause conflict if they disagree on how something should be handled. Naming multiple executors should be done with careful thought about how well those individuals will work together.
Who Can Be Executor If the Will-Maker Has No Family?
If a will-maker doesn’t have close relatives or trusted friends, or simply doesn’t want to name these individuals as executor, other options are allowed. Certain professionals and public bodies can take on the role so long as the estate is still managed according to the will’s instructions. Some of these include:
- Trust companies, banks, or estate administration firms: These organizations are equipped to handle probate, manage assets, pay debts, and distribute the estate. They charge fees, often a percentage of the estate’s value plus expenses, but can offer efficiency and impartiality, especially for larger or more complex estates.
- The Public Guardian and Trustee (PGT): In BC, the PGT can act as executor if appointed in a will or by court order. This option is generally used when no one else is suitable or available. While the PGT will manage the estate according to the law, the process can take longer than with a private executor, and fees still apply.
- Lawyers or accountants: If the will maker has a professional they trust, such as a lawyer or accountant, that person may accept the role. This can be helpful for estates with legal or financial complexity, as these professionals have the necessary skills to handle both.
Who Cannot Be an Executor of a Will In BC?
While many people are legally eligible to act as an executor, WESA also specifies who is not fit to serve as an executor. This includes:
- Anyone under 19 years old.
- Someone declared mentally incapable.
- Anyone with an undischarged bankruptcy.
- A non-resident of Canada who cannot post the required bond.
In addition to these legal restrictions, the court can also find someone unsuitable to act as executor if they have:
- A serious conflict of interest.
- A history of dishonesty or mismanagement of financial matters.
- A poor relationship with the beneficiaries that could jeopardize the fair administration of the estate.
It’s also worth addressing a common misconception: being a beneficiary of the estate does not disqualify someone from acting as executor. In fact, executors are often beneficiaries. This is entirely legal in BC and often makes sense given the nature of close personal relationships.
When to Work With an Estate Litigation Lawyer
If there’s uncertainty about a will, tension between beneficiaries, or concerns about how an executor is handling their duties, an estate litigation lawyer can make all the difference. Stephens & Holman will explain your options, protect your rights, and take action if you have a valid claim. Find an office near you and contact us to schedule an appointment.