Executor’s Duties, Post WESA
What happens if you are appointed Executor?
In British Columbia, the new Wills, Estates and Succession Act (“WESA”), which came into force on March 31, 2014, governs what happens when a person passes away. If you have been appointed Executor in the Will, there are a wide range of obligations if you accept the position of Executor. However, you may decline to act as Executor by renouncing your Executorship and signing the appropriate documents so that the Alternate Executor may act or so that some other person may apply for the representation grant.
What do Executor duties include?
- Locating the Will and reviewing it with the estate lawyer.
- Attending to the funeral and other family matters.
- Determining if survivors require funds for living expenses. Financial institutions often release funds from the deceased’s account if urgently required by the survivors.
- Reviewing important papers of the deceased. Attending the bank to obtain a listing of the safety deposit box contents and the securities in safekeeping.
- Reviewing insurance policies to ensure adequate coverage is in place.
- Compiling a list of assets, values and debts.
- Reviewing outstanding debts (i.e.: mortgages, loans, agreements) to determine ongoing payment requirements.
- Obtaining serial number and registration particulars for all vehicles.
- Obtaining names and addresses of all beneficiaries, children, and next of kin.
- Redirecting mail.
- Canceling credit cards and subscriptions.
- Returning pension cheques and government benefit cards. Applying for death benefits.
- Notifying financial institutions, life insurance agents, and completing claims.
- Obtaining Death Certificates to enable transfer of joint tenancy properties and to claim insurance benefits.
- Obtaining the representation grant to provide authority to distribute the estate according to the Will.
- The lawyer will do the Wills Search, prepare the required application documents and make application to the Court for the representation grant. As part of the application for the representation grant, the applicant must mail or deliver by email, fax, or electronic means, a copy of the Will (if any) and Notice of Proposed Application in Relation to Estate to certain persons at least 21 days before submitting the application materials for filing with the Supreme Court Probate Registry.
- Upon receiving the representation grant, gathering all funds of the estate and disposing of real estate and securities as stipulated in the Will.
- Advertising for creditors and reviewing creditors’ claims.
- Collecting any outstanding amounts due to the deceased and paying estate debts.
- Attending to income tax returns and the tax Clearance Certificate.
- Preparing an accounting of monies received and paid out with the proposed final distribution. Distributing it to all beneficiaries for execution with a release of any claims against you as the Executor.
- Distributing the funds to the beneficiaries.
What is WESA?
Pursuant to the terms of WESA, a spouse or child of the deceased may make an application to vary the Will if they have not been properly provided for under the Will. Such an application must be made within 180 days of the date the representation grant is issued in British Columbia. A Notice of Civil Claim for a wills variation claim must be served on the Executor within 30 days of the expiry of the 180 day limitation period (unless the Court extends the time for service). You are therefore restricted from distributing the estate until the 180 day limitation period and the 30 day service period has expired.
What fees can be charged?
The Executor is entitled to charge fees up to a maximum of 5% of the gross value of the estate plus reimbursement for all out of pocket expenses, unless otherwise authorized by the Will or by contract. Fees must be approved by the beneficiaries or, in the absence of that, by the Court. If the estate is small, it may be possible to distribute the assets without obtaining a representation grant. The advice of the lawyer should be sought to determine the correct course of action.
What happens if there is no Will?
A person dying without a Will is deemed to have died “intestate” and that person’s estate will be distributed according to WESA. Someone must apply to the Court for a representation grant in order to administer the estate, and Section 130 of WESA sets out the order of priority of applicants. The powers and duties of an Administrator are roughly equivalent to those of an Executor.
This information applies as a general rule but may change depending upon the specific circumstances of your own situation. You should consult a lawyer before acting on any of this information. If you have any questions, please do not hesitate to contact Vanessa DeDominicis directly on 250-869-1140 or firstname.lastname@example.org. Vanessa practices in the area of Wills and Estates with Pushor Mitchell LLP in Kelowna, B.C.