Role of an Executor
A person who makes a Last Will under the laws of Ontario, Canada is called a “testator”. In a Last Will, the testator names an “executor” or “executors” (ie. more than one “executor”) who will be in charge of administering the testator’s estate involves carrying out many legal fiduciary duties which include:
- Ascertaining what all the testator owned and left behind on the date of the testator’s death, and taking control of and securing all those assets;
- Ascertaining all debts including all taxes owned by the testator on the date of his/her death;
- Paying out of the assets left behind by the testator all the testator’s debts and taxes owed up to the date of death, all the taxes owed by the testator’s estate after his/her date of death, and the executor(s)’ costs of administering the testator’s estate;
- After making all such payments, distributing the remainder of the testator’s assets to those people and entities ( all called “beneficiaries”), and in the manner, specified in the testator’s Last Will.
NOTE: There are numerous other legal fiduciary duties which an executor must perform, such as keeping accurate and complete accounting records of every transaction undertaken by the executor(s) with the estate assets. Another is the duty to keep all the beneficiaries of the estate regularly informed of the steps being taken to administer the estate.
Changing The Executor of a Will
While a testator is alive and mentally capable of understanding what she/he is signing, there are two prudent ways that the testator can change the executor(s) named in his/her Last Will:
- By signing a new Last Will in which such change is made; or
- By signing a “Codicil” to the Last Will to make such change. A “Codicil” is a formal legal document which is used to make a short or small or simple change to a Last Will. The same signing, witnessing, and mental capacity requirements which apply to a Last Will also apply to a Codicil.
After a testator has died, an executor named in the testator’s Last Will may “renounce” (i.e give up) his/her position as an executor. In such a case, if the testator has not named a second person or an alternate person as an executor in his/her Last Will, then a court order appointing an “estate trustee” of the testator’s estate will become necessary.
Consulting a Lawyer
It is always recommended that a lawyer be consulted for professional guidance in changing an executor or making any other change in a Last Will. A Last Will is a very complex legal document, and each word changed in it, or deleted from it, or added to could result in a legal interpretation of it which the testator does not intend if the change is not made carefully.