Wallace Funeral Home

It is our pleasure to provide some basic information about being an executor, with the help of Emily Palmer, Q.C. of Palmer and Palmer Law Offices. The law can change from time to time, so if somebody has asked you to act as an executor and you have specific questions about your role you should contact a lawyer.

What is an executor?

An executor is the person or trust company named in a will to administer an estate. The person who made the will (called the testator) expects the executor to settle the estate and distribute the property to the beneficiaries according to the instructions set out in the will.

What is included in the estate?

The estate includes everything owned by the person at the time of his or her death. For example, the estate might include a house, cottage, automobile, bank account and investments. It would also include any property that comes into the estate after the person's death. Since he or she is not there to administer it, the executor assumes the responsibility for handling all matters associated with carrying out the wishes of the deceased and winding up the estate.

What are the executor's duties?

The executor is responsible for arranging the person's funeral, taking possession of all the their property, documents, and accounts, making a list of them, having the estate probated if necessary, paying the debts of the estate, and distributing the estate to the beneficiaries.

What does the executor do upon learning of the person's death?

As soon as the executor learns of the death of the person the executor must decide if he or she is still willing and able to act as executor. Usually, the person named as executor has discussed their role with the person in advance so this should not be a problem.

The first event that must take place is the person's funeral. Ideally, the person's family and executor will know where to find any specific funeral instructions. These should be in a safe place so they can be referred to upon the person's death. If this has not happened, the executor will have to find and read the will to see whether it contains funeral instructions.

What if the will does not give specific instructions? What if there are no instructions for burial arrangements?

Where the person has given no instructions, as for example about the place of burial or the type of funeral, the executor has the right to decide the matter as he or she thinks best. If there is doubt about the person's wishes, the executor should allow the family to choose an appropriate funeral arrangement. The funeral expenses are payable out of the estate.

When does the executor read the will?

As soon as possible, the executor should find, and carefully read, the original will. It is not advisable to put one's funeral instructions in one's will. Often the will is not read until after the funeral. The will should help the executor verify certain points, such as:

Can I refuse to act as an executor?

You are under no obligation to act as an executor. You can refuse the position when the person first asks you. Or, if you agree to act as the executor, you may still change your mind at the time of death. If you are unable to act as executor when the beneficiaries ask you to distribute the inheritances, you can refuse to act. You will automatically lose all rights of executorship. You do not have to make a formal renunciation in court.

If I start my duties as executor can I change my mind later?

Once you begin to carry out the duties of an executor, you cannot just walk away. By law your intervention in the estate makes you responsible for the executorship. If you wish to back out after you have taken control of the person's property, you must formally renounce your position. To do this, you must submit the renunciation in writing to the Probate Court.

This does not mean that you cannot ask about the assets and liabilities of the estate. However, your actions may establish you as the executor. You should therefore be careful before taking any actions that may commit you to this position.

Can I be held responsible for mistakes I make while acting as an executor?

It depends on the circumstances. You must act for the estate as if it were your own property. An executor who is reasonably careful in carrying out his or her duties will probably not be held responsible if things go wrong. However, if the executor is careless, he or she can be held responsible for the losses suffered by the estate. For example, if you make frivolous investments or unauthorized expenditures on behalf of the estate, you may be liable. You might have to repay losses personally.

Can I get help if administering the estate becomes complicated? May I hire a professional?

Yes you may. It is important that you handle the estate properly because you may be held responsible for your mistakes. When you are in doubt about what to do, it is wise to consult a professional. Reasonable fees charged for professional services would be paid by the estate.

When might I need the help of a lawyer?

A lawyer may be able to help an executor in the following ways:

Will I be paid for my services as executor?

The executor has the right to be paid for his or her services. If the person has made no provision for payment in the will, then you can make a claim for financial compensation before the Probate Court. The fees that you receive as executor are taxable (to you). The executor also has the right to be reimbursed for all reasonable expenses made while administering the estate. Family members will often agree to administer an estate without taking a fee. You should discuss this with the person. Whatever you agree to should be set out in the will.

The executor's duties end as soon as the estate is completely settled. This normally means when all the debts of the estate have been paid, including income tax, and the person's property has been distributed according to the will.

In rare situations, the executor may be obliged to reopen the estate after it is closed. For example, the discovery of sums of money, even 20 years after the death of the person, would force the executor to reopen the estate and distribute the money according to the instructions in the will.

No, there is no strict rule about the length of time an executor is allowed to complete his or her duties. It all depends on the complexity of the estate. In most cases, one year is considered a reasonable period of time. The longer the executor does take, the more likely it is that the beneficiaries will complain. They may apply to the Probate Court for an order compelling the executor to carry out his or her duties on a timely basis.

Yes. Any interested party who has reason to believe that an executor has acted improperly in the administration of an estate may start a legal action to have the executor removed. They do this by making an application to the Probate Court. They must show that the executor committed a fraud or acted in an unreasonable manner which has resulted in a loss to the estate. In other words, they cannot request that you be dismissed simply because they do not like one of your decisions.

In the administration of simple estates, the beneficiaries often sign a "release”. This relieves the executor from his duty to account to them for the administration of the estate. However, any beneficiary who has not signed such a release or who has done so without know what he or she signed, may apply to the Court to require the executor to account to the Court for his or her administration of the estate.

It is our pleasure to provide some basic information about probating a Will with the help of Emily Palmer, Q.C. of Palmer and Palmer Law Offices. We hope to answer some of the more frequently asked questions about probate of an estate. However, laws do change from time to time. To be sure that you have up to date and specific information on legal matters you should consult your lawyer.

What does it mean to "probate" a will?

The word probate means to prove or validate. Probate is the procedure by which a will is approved by the Court as the valid and last will of a deceased testator (the person who made the will). It also confirms the appointment of the person named as executor in the will. The Court gives the executor documents, called the letters of probate, as proof of his or her authority to deal with the estate.

When do you need probate?

It depends on the nature of the assets, the beneficiaries and the will. Often, the will is sufficient to give the executor all the powers of action needed to settle the estate.

If the will is particularly complex or if the administration of the estate may take several years to complete, it is wise for the executor to obtain letters probate. The letters of probate provide official recognition of the authority of the executor over the testator's estate, for example, to recover money owing to the testator or to transfer certain assets in accordance with the instructions in the will. As well, letters probate may be necessary if the executor expects that somebody may contest his or her right to act as executor.

How does one obtain the letters probate?

The person requesting the letters probate may apply to the office of the Clerk of the Probate Court. This may be done in the judicial district where the testator was residing when he or she died or in a district in which the testator owned property. For instance, if the testator lived in Moncton, but owned a cottage in Plaster Rock, the executor could apply to the court in Moncton or in Woodstock.

What fees must an estate pay to obtain the letters probate?

The fees payable to Probate Court for the letters probate are set out in the Probate Court Act and its Regulations. The fees are based on the value of the estate. Generally, the fee schedule is as follows:

If a lawyer prepares and submits the application for letters of probate, the estate will have to pay the lawyer's fee as well. This fee is separate from the probate fee. The tariff of fees lawyers are entitled to charge for specific services related to settling an estate is also set out in the legislation.

You may obtain copies of the Probate Court Act and its Regulations from the Queen's Printer in Fredericton (tel. number: 453-2520) or you may consult the law society libraries in Bathurst, Edmundston, Campbellton, Fredericton, Moncton, Miramichi, Saint John, St. Stephen, or Woodstock.

What happens if a person dies without leaving a will?

When someone dies without a valid will (called intestacy), the Probate Court must then appoint someone to act as administrator (rather than executor) of the estate. The Court makes this appointment upon the application of someone qualified to act in this capacity. Usually the Court appoints a member of the family, or if there are none, a close friend of the deceased. The administrator may then apply and pay for the letters of administration in the same way as for letters probate. The fee schedule for the letters probate also applies to letters of administration.

What is the role of an administrator?

The role of the administrator is similar to that of an executor named in a will. The administrator collects all money due to the estate and pays the debts. Once the debts are paid, including income tax, the administrator's duty is to sell the assets of the estate and distribute the proceeds in accordance with the Devolution of Estates Act.

What is a Public Administrator?

The Public Administrator is an official of the Department of Justice. Sometimes when a person dies in the province and leaves property, there is no one who can act as an executor or administrator. This can happen with or without an existing will. In such cases, the Department of Justice may order the Public Administrator to apply for the letters of administration. Once the letters are received, the public administrator will administer the estate.

It is our pleasure to provide some basic information about probating a Will with the help of Emily Palmer, Q.C. of Palmer and Palmer Law Offices. We hope to answer some of the more frequently asked questions about making a will in New Brunswick. However, laws do change from time to time. To be sure that you have up to date and specific information on legal matters you should consult your lawyer. A will must be made properly or it will have no legal effect.

What is a will?

A will is a legal document in which you name the people or organizations you wish to receive your property after you die. These people are called your beneficiaries and you are called the testator. The property that you own at the time of your death is called your estate. In your will you also name the people or the trust company you want to be responsible for administering your estate and distributing your property according to your wishes. The person or trust company you choose to handle your estate is called the executor.

There are several reasons why you should consider making a will. They are, for example:

Only by making a will can you decide who gets what. If you die without a will, you are said to have died intestate. If you die intestate your property will be distributed by a court-appointed administrator according to the Devolution of Estates Act. Your property will be divided in fixed shares among the people that the law regards as your closest relatives.

When you make a will you may appoint the executor of your choice. If you die without a will, the court will appoint an administrator. The administrator's job is to divide your property and assets among those who are entitled to it. The person appointed administrator is usually a member of your family, or if you have none, a close friend or even a creditor. However, this may not be the person you would have chosen.

A will gives you flexibility. For example, it permits you to use "trusts" to help in managing the benefits provided for your survivors. Also it enables you to give to the executor all the powers needed to carry out your wishes.

When you make a will you may choose the guardian of your choice for your children under the age of 19. If you die without a will, the court will appoint a guardian for your children. The guardian will usually be a close relative but it may not be the person you would have selected.

By making a will and appointing your own executor, the settlement of your estate should proceed more quickly. Your family will not have to spend time in having the court appoint an administrator. This will save your estate money as well.

Under the Wills Act, you must be at least 19 years old to make a valid will. You must also be mentally competent. The law makes certain exceptions to the age requirement. If you are or have ever been married you can make a valid will even if you are under 19 years of age. Also, members of the Canadian Forces on active service and mariners or seamen while at sea or in the course of a voyage, can make a valid will under the age of 19.

Generally speaking, you can leave your property to whomever you choose, including charities. However, you may have a legal duty to provide for certain people who depend on you for their support. If you do not adequately provide for them in your will, one or more of them may apply to the court under the Provision for Dependants Act. Those who can apply to the court under this Act include, for example, your spouse, children, parents, and common-law partner. Your spouse may also apply to the court for certain entitlements under the Marital Property Act. The court may override or change your will to provide for your dependants or to give your spouse a proper share of the marital property.

You can give away by your will any property that you own at the time of your death. You should consider the following:

You should consider what you want to happen to property such as real estate, bank accounts and vehicles. If you share the ownership of property with others, you may not be sure what you are entitled to give away by your will. This may require considerable legal knowledge. It is wise to see a lawyer who can determine if the type of shared ownership you have entitles you to include that property in your will.

Things like pension plans, life insurance, RRSPs and Credit Union Accounts can be given away by your will only if you have named your estate as the beneficiary of these assets. In such a case, these assets will become part of your estate upon your death and their distribution will be governed by the terms of your will. However, these assets would not be included in your will if they are payable to a named beneficiary other than your estate.

You may wish to identify personal items such as jewellery and heirlooms as bequests for specific individuals.

Wills set out how you wish to provide for your family and distribute your estate when you die. However, the first thing your estate will be used for is to pay off your funeral expenses, the costs of administering your estate and any debts you owe when you die. Your beneficiaries will only get what is left over.

You may choose either a person or a trust company to act as your executor. Most importantly, you should choose somebody that you trust to carry out your instructions. Since most estates are fairly simple, family members or trusted friends are often chosen as executors. Keep in mind that the job of executor is an important one. It requires time, dedication and some paperwork. The person you name as executor is under no obligation to accept the role so discuss it with him or her first. You should also talk to your executor about the fee. Tell your executor if you expect him or her to act without pay or for an agreed to amount. Set this out clearly in your will.

If you are making a will and you have children under 19 years of age, you should consider naming a guardian to care for them. This is in the event that you and your spouse die at the same time. The guardian looks after the children and protects their interests. Guardianship is an important responsibility. It should be discussed with the proposed guardian beforehand. You should name an alternate guardian in case the first one is unwilling or unable to act. The person that you name as guardian need not be the same person you name as executor.

Can my will include long-term arrangements for dependants or somebody that I wish to provide for?

Yes. You may consider, for example, setting up a trust and giving a trustee broad powers to manage the trust fund for the benefit of your children while they are under the age of nineteen. Parents of an adult child with a disability may be able to set up a trust that still permits the beneficiary to qualify for government benefits. Trusts can serve many purposes including making the most of certain income tax advantages. You should get legal advice if you are interested in setting up a trust.

No. You should consider making funeral plans but do not include them in the will. When a person dies the will is usually read after the funeral. Think about your wishes for funeral arrangements and leave your instructions in a separate letter. Put the letter in a safe place. Make sure your family and executor knows of your wishes and where to find the letter. If you have not made funeral arrangements, your executor has the right to do so. The funeral expenses are payable out of the estate.

Many people purchase pre-arranged funeral plans. This option allows you to arrange and purchase the particular funeral plan that you want while you are living. This may give you peace of mind and relieve stress on your family when you die.

No, but it is wise to get advice from a lawyer. A lawyer will know how to prepare the will in the proper legal form. He or she can tell you which things need to be dealt with by your will and which do not, like insurance proceeds and jointly owned property, depending on the circumstances. The lawyer can suggest the best ways for your will to do what you want. Usually, there are more options than your realize. The lawyer can advise you about your legal obligations to provide for dependants so that claims against the estate after your death can be avoided. A lawyer can also advise about estate planning and what arrangements you can put in place during your lifetime as an alternative to using a will.

At the first meeting you and the lawyer will discuss how you would like to distribute your estate. Come prepared to name your executor(s) and guardian(s) and provide any specific instructions. Afterwards, the lawyer will draft the will and arrange for you to go through it in detail before a final version is prepared for signing. If you are uncertain about any part of the will, ask the lawyer to explain it so you know whether the will does what you want. When you are satisfied that it does what you want, it can be formally signed and witnessed. Your lawyer will advise you on the proper way of doing this. The lawyer and office staff usually act as witnesses.

Lawyers use different methods of calculating fees depending on the type of legal service provided. Ask up front how much he or she will charge for a will and how you should pay. Lawyers are usually able to quote a flat fee for wills. The lawyer's out-of-pocket expenses, such as long distance telephone calls, photocopies, etc., will usually be extra.

You can prepare for your appointment with the lawyer and probably save time and costs by having the following information ready.

i) Full names and addresses of the people you want to leave things to including details of your children's ages, and special needs. If you want to leave something to an organization, such as a charity, try to find out the full legal name of that organization. Most lawyers can verify the exact name if you are unable to do so;

ii) Detailed list of all property including pensions, insurance and annuity contracts. You should also list your debts and the location of your bank accounts and other assets even if you are not sure that these will be covered by your will;

iii) Names and addresses of those you want to appoint as your executor, trustee and guardian for your children;

iv) Special instructions about keeping property such as a house or a cottage in the family;

v) Copies of any marriage or separation agreements and details concerning your place of marriage;

vi) A copy of your previous will;

iv) General instructions on how you want to divide your property.

Yes, you may create a valid will by preparing it completely in your own handwriting and signing at the bottom. Witnesses are not necessary. This is called a holograph will. However, if you are not familiar with the various other legal requirements you may create problems for your estate, family and heirs. Holograph wills should be avoided except in the case of an emergency.

Yes, they are valid if properly filled in, signed and witnessed. However, you must be very careful because such forms may also create problems for your estate, family and heirs. For example, if the will is not properly signed and witnessed it will not be valid. By law, you must sign it at the bottom in the presence of two adult witnesses who sign after you. Everybody must see each signature being made. However, if a beneficiary under the will or the spouse of a beneficiary acts as a witness the gift to that beneficiary may not be valid. The witnesses must be mentally competent.

Keep your will in a safe, fireproof place - there is only one original. You may want your lawyer to keep it in the firm's safe and give you photocopies. Some people put their important papers including the will in a safety deposit box. The bank will permit your executor to retrieve it and nothing more at your death. It is important that you tell your executor and family where they can find the will, as well as your funeral instructions and your safety deposit key.

Yes. You can revoke your will at any time prior to your death as long as you are mentally competent to do so. Under the Wills Act there are only certain ways to revoke a will. The safest way to do this is to make a new will stating at the beginning that you revoke all previous wills. If you wish to revoke your will you should contact a lawyer.

Yes. A will can be changed at any time prior to your death. Again, you must be mentally competent to do so. You must also follow the provisions of the Wills Act. If you try to change your existing will by writing on it, the changes will likely not be effective. If you wish to change a part of your will you should contact a lawyer.

Whenever there is any change in your marital or family status, such as a divorce, separation, remarriage, or the birth of a child, you should have your will reviewed. You may want to change your will when a child who was a minor when the will was made reaches the age of majority. Some changes, such as marriage or remarriage, affect the operation of your will. Other changes do not affect a will even though your intentions may have changed. For example, a separated or former spouse who is named as a beneficiary in your will would still inherit no matter how long you had been apart. In this case, you must formally change the will if that is your intention.

In addition, you may also wish to change your will for other reasons. For example, other reasons for changing your will could include changes in tax laws, changes in your financial status, changes in the status or health of a dependant, the death of a beneficiary, or the death or departure from the province of a guardian, trustee or executor. Ask your lawyer to send you a reminder to have your will reviewed every three to five years.