Community Conversations: Heavy lifting by the executor, not for the faint of heart

Contributed by: Anne Marie Thompson, Attorney-at-Law, Sandonaconsulting@yahoo.com
When a person dies, the assets of the deceased person’s estate (also known as the Testator) must be administered by a personal representative, who is entrusted with the legal authority to step in and carry out that responsibility. Of course, how the estate is administered depends largely on whether the person died with or without a will. If there is a will, the estate is administered by an Executor.
Think of it like this: the maker of the will may be gone, but his house, his land, his bank account, his children, his business, and sometimes even the family arguments are all still here. Someone has to step in and take charge of it all, much like the deceased would have done if he were still alive.
For the most part, wills generally contain a clause in which the Executor is clearly identified by name, address, and occupation. However, the will may instead authorize another person to appoint the Executor. The court also has the power to appoint an Executor under certain circumstances.
So, have you been appointed Executor? If yes, you could suddenly find yourself with some serious “heavy lifting” ahead. But even though it was the deceased’s wish under their will for you to be the Executor, you had the right to accept or renounce the office.
Essentially and broadly speaking, as the Executor, your duties are to collect in and realize the assets of the deceased, discharge debts and liabilities, and distribute the assets of the estate. While there is a general expectation, often referred to as the “executor’s year, that you have one year during which you must perform these duties, the timing depends on the complexity of the estate, court processes, and the practical realities on the ground. Certainly, you can begin performing these duties from the time of death, but in many instances, you will need to show proof of your authority to act (i.e., a Grant of Probate). That is why it is so important and very practical to apply to the court and obtain the Grant of Probate for you to properly perform your duties.
Now, if you are going to be doing the “heavy lifting”, it means you have certain powers, some granted by law. As the Executor, do you know what these powers are?
As the Executor, you must collect or recover the assets belonging to the deceased’s estate. Those assets not disposed of by the will may be sold to raise money to pay the estate’s debts and funeral expenses. But caution is key. Always ensure proper searches are done before selling property, and check whether there is a mortgage or other encumbrance attached to the property. After selling the property and ensuring debts and expenses are paid, any remaining funds will form the residue of the estate and be distributed to persons beneficially entitled under the will. In effect, you would have exercised your legal power of sale and performed your duty of distribution.
However, it is important to note that all assets forming part of the deceased’s estate are available to pay debts and administration expenses. This applies even if an asset has been left to someone in the will. If the estate is insolvent and does not have sufficient funds to cover debts and expenses, the Executor may have to sell the estate’s assets, including those intended for beneficiaries, to meet financial obligations.
There are other powers, including the power to grant or accept the termination of a lease of the deceased’s property; the power to operate a bank account; the power to sue; and the power to continue the deceased’s business, especially where it is a going concern.
This brings me to my final question: do you know that even though you are the Executor, there are certain assets that fall outside your authority and administration?
For example, if the deceased owned property jointly with another person, the property automatically passes to the surviving owner upon death and would not be included as an asset of the estate. Also, if an insurance policy taken out by the deceased is intended to benefit someone else, the insurance proceeds are usually paid directly to that person and would not be an asset of the estate.
Being an Executor is a great privilege, but it is also serious work that requires some real “heavy lifting”, make no mistake. Your appointment is an honour, but it is also a responsibility that you voluntarily embraced at a time when you were free to accept or decline, after considering what it involves. Once you have accepted the appointment and obtained the Grant of Probate, you become the personal representative of the deceased’s estate. From that point onwards, you are clothed with the powers and duties to administer the estate in accordance with the deceased’s will and the relevant laws. So, as you do the “heavy lifting,” be sure to enjoy the journey while doing it properly, fairly, and with care.