Area of Law: Wills, Estates and Powers of Attorney
Answer Number: 144
Executors: Personal RepresentativesRegion: Ontario Answer Number: 144
An executor, also known as a personal representative in Ontario, is someone you select to carry out the wishes in your Will. In addition to making sure that your property goes to the people you have chosen, your personal representative or executor is responsible for performing a number of duties to ensure that your personal affairs are wrapped up in an orderly manner following your death. You can appoint more than one personal representative, and you can also name an alternate personal representative, who would step in if your personal representative was unable to act.
Who can be a Personal Representative or Executor?
Generally, you can select anyone to be your personal representative or executor provided they are at least 18 years old and able to understand what is expected of a personal representative. If you select someone who is under the age of 18 or not able to understand the role of a personal representative, the law will appoint a different personal representative. Above all, your personal representative should be someone you trust, and you should talk to them about being your personal representative before deciding to appoint them in your Will.
Duties of a Personal Representative or Executor
Your personal representative must perform a number of duties when you die. Although these duties may vary depending on your particular situation, your personal representative generally:
- assists with funeral arrangements,
- finds out where your bank accounts are,
- makes a list of all the things you own and all of your debts,
- cancels all of your credit cards,
- files your final income tax returns,
- distributes property to your beneficiaries, and
- maintains complete records of all transactions performed in the administration.
It is important to prepare a complete list of debts because all debts must be paid before gifts are paid out to beneficiaries. Gifts to beneficiaries may be reduced by the amount needed to pay the debts. To make sure that all debts are paid off, personal representatives often run a small ad in the local newspaper, called a Notice to Creditors and Claimants, asking any creditors to come forward. If the personal representative believes the claim is legitimate, they may accept it and pay it from the estate funds. If the personal representative is unsure about the claim, he or she can ask for written proof of the claim, or, depending on the amount or complexity of the claim, can consult with the estate lawyers before paying.
Your personal representative or executor owes an obligation to your estate and its beneficiaries to prudently administer the estate. For example, personal representatives must maximize the assets that will ultimately be available for distribution, which may require the investment of certain assets if they will not be distributed in a timely manner. If they fail to fulfill their obligations in good faith, they can be held personally liable.
Typically, a personal representative should call in all assets of an estate and prepare for their distribution within one year, which is often referred to as the “executor’s year”. Beyond one year after death, a personal representative should be able to provide an explanation to beneficiaries as to why distributions have not yet been made and provide a proposed distribution schedule.
Compensation for Personal Representatives or Executors
Personal representatives or executors are reimbursed by your estate for most of their expenses. In recognition of the onerous nature of the role, they are also paid a fee for acting as your personal representative, which is generally 5% of the value of your estate.
More information about Wills and Estate Planning can be found from the Ministry of the Attorney General.
If you are a personal representative, you should consult with a lawyer about your specific responsibilities. You could be sued if you do not carry out your duties properly.
For advice about appointing a personal representative or your duties if you are a personal representative, or for other estate issues, contact our preferred Wills & Estate lawyers and see who’s right for you:
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