Written by Amy-Alexandra Jaworsky, Victoria lawyer
So, you have been asked to act as an executor or perhaps someone has passed away without appointing one and you have been asked to take on the responsibility of administering their estate.When a person appoints a personal representative to act for them in their Will, they are referred to as an Executor. When a person dies without a Will and a personal representative is appointed by the court to act for the estate, they are referred to as an Administrator. In this article, I refer to both as a personal representative.
What does a personal representative do? Your responsibilities kick in after your friend or family member dies. Briefly, you are responsible for dealing with the deceased’s remains, taking control of their assets, searching for the most recent Will, converting the assets into cash, paying their debts and distributing the remainder according to the terms of the Will, or, if there is no Will, according to the rules set out in the wills legislation. Simple, right? Not so fast! The devil is in the details, as they say. There are many other tasks that the personal representative must do and they can range from clearing out the deceased’s home, cancelling services, notifying friends and relatives of the death, arranging for the funeral, dealing with the beneficiaries, filing the deceased’s income tax return, managing or wrapping up their business and also in some cases applying for probate (if there is a Will) or a grant of letters of administration (if the person dies without a Will). In this article I refer to both as an estate grant.
Probate is the term used to describe an application to the court after someone dies. An estate grant is the document the court issues after the probate application is successful. The estate grant is official proof that the Will (if there is one) is valid and it is also proof that the personal representative has the authority to act on behalf of the deceased. An estate grant is not always required to deal with the deceased’s assets but here are a few common reasons why a personal representative might want to obtain one:
- If the personal representative is selling the deceased’s home, the land title office requires the estate grant to process the transfer.
- Depending on the type of asset, the entity in charge of the asset may require probate – for instance, depending on how much money the deceased had in their bank account, the bank may require an estate grant prior to releasing the money to the personal representative.
- The deadline for starting certain court actions in relation to the estate starts to run from the date the estate grant is issued – so if no estate grant is issued, the clock does not start to run.
Sound complicated? It can be – and it is a lot of work with significant responsibility. A personal representative can be found personally liable if they do not do a proper job. But what happens if someone appointed you as their personal representative without your knowledge? The good news is that just because someone appointed you, it does not mean you are required to take on the job. As long as you have not started to deal with the deceased’s assets, you are permitted to refuse the appointment. For this reason, a Will maker should carefully consider who they appoint as their personal representative and also make sure that the person is willing to take on the job. As a personal representative, you want to make sure you fully understand the commitment that will be required of you before you agree to take on the role.
To get in touch with Amy, email firstname.lastname@example.org or call 250.858.0344.