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Archive for executor of a will

Your Executor’s Spouse

Friday, February 26th, 2016

I’m not crazy about the spouse/partner of my executor or guardian. Is that a problem?

The simple and probably unsatisfying answer is it depends. In most cases, I wouldn’t worry too much about whether you get along well with the spouse or partner of your executor. The executor’s job is to deal with property. The legal powers of the executor are not meant to be shared with the executor’s significant other. So if you trust your executor to deal responsibly with your money and other property, your dislike of your executor’s spouse is probably not terribly significant.

It’s not like your executor’s spouse can say, “Honey, I know your brother planned on leaving everything to his kids, but I really want to buy a condo in Phoenix.” Well, okay, your executor’s spouse could in fact say that, but presumably your executor is mature enough to know that, as far as the law is concerned, following through on such a proposal would be tantamount to theft.

A concern about the executor’s spouse is often based on a conceptual misunderstanding about what you’re doing when you appoint someone to be your executor. You are not giving your assets to your executor; you are simply entrusting that person to distribute your assets as you have indicated. As such, the executor’s spouse has no ownership interest in, and no legal right to, your property.

However, if your would-be executor’s spouse has a history of theft or fraud, a debilitating gambling problem, a tendency towards domestic violence, or a severe drug addiction that has led to money problems, then that may in fact be a reason to pick a different executor. It wouldn’t be a case of not trusting your executor, but a reasonable fear that your executor’s spouse would steal funds the estate, for example, by having access to your executor’s bank records, cheque book, etc.

Except in such rare circumstances, the spouse of your executor is probably irrelevant. If your executor is trustworthy, and is willing to assume the responsibility of administering your estate, then that’s probably all that really matters.

It’s an entirely different matter if you can’t get along with the spouse of your would-be guardian. A guardian assumes parental responsibility for your children once you have died. That person’s spouse will almost certainly become a parental figure to your children. If you have legitimate concerns about the spouse’s parenting capacity, it probably makes sense to look elsewhere for a guardian.

That being said, you may wish to consider whether you are being too critical of your would-be guardian’s choice of partner. Would this person provide a safe and loving home for your children? If the answer is yes, then a minor personality quirk or two may not be deal-breaker. For most people, the pool of would-be guardians is not terribly large, as people outside of close family are probably not chomping at the bit to raise your kids. I’m not suggesting that you shouldn’t be selective in your choice of guardian, but simply that you shouldn’t expect perfection from your guardian or from the spouse of your guardian.

 

How old should the executor be?

Thursday, December 10th, 2015

In Alberta, the minimum age for an executor is 18 and there is no maximum age. That being said, an executor still going through puberty (for me, I think I was 30) or an executor with firsthand memories of the “Great War” may be too young or too old.

A good executor is often someone your age or younger. The reason for this is simple. You want to maximize the likelihood that your executor will be alive after you have died. If you are still in your 20s, 30s, or 40s, an older executor may not be a problem, but you will eventually want to change your executor if you pick someone older.

Given the desirability of choosing an executor your age or younger, it is easy to see why spouses and adult children typically make good executors. A spouse is often approximately your age. A child is necessarily younger than you, typically by at least two decades.

Where should the executor live?

Wednesday, November 25th, 2015

For starters, an executor should reside on Planet Earth. I have nothing against Klingons, but they don’t make the best executors. Part of that has to do with the desire to rush into battle. Longevity is a worthwhile characteristic in an executor.

So we’ve established that your executor should be an Earthling. Usually, your executor should live in the same country as you. Even better, your executor should live in the same province. The best situation, geographically speaking, occurs when your executor lives in the same city as you.

That’s not always possible, and geography is just one factor to consider when choosing an executor. However, it is an important factor. There are a few reasons for that.

For starters, a nearby executor can more easily deal with your property. He or she can attend local banks, hire a local Realtor, meet with a local estate lawyer, etc. A nearby executor can more easily make a court application to probate your estate. Furthermore, a nearby executor likely speaks the language that is used by the legal system where your property is located. This is particularly important for my clientele, as many of my clients are immigrants.

You’re also less likely to have unexpected tax consequences when you use an executor who resides in the same jurisdiction.

How many (alternate) executors should I have?

Thursday, October 15th, 2015

Most people will have a single primary executor and 1 or 2 alternate executors. A primary executor is most commonly a spouse or partner. Someone with minor children may pick a sibling, parent, or even a personal friend, as an alternate executor. A person with adult children will likely pick one or more of those adult children as alternate executors.

Sometimes a person doing a will feels compelled to list several people as executors. The reasons vary. For one person, there may be the sense that being named an executor is a great honour, and that failing to name someone as an executor (even if only as the 19th choice) is a major slap in the face. For another person, there may be the concern that he or she, along with all the executors already listed, may die in a horrific accident or perhaps succumb to a zombie apocalypse. If just one more person is named, that will reduce the likelihood that no one will be around to act as executor.

While it may be an honour to be named as an executor, this is significantly outweighed by the fact that being called upon to act as an executor is a big job and typically a colossal nuisance. In most cases, you want to avoid naming someone as an executor unless that person stands to substantially benefit from the will. An exception exists when you have young children and you appoint someone like a sibling to act as the alternate executor. In that case, the sibling will be willing to act out of a sense of love and family loyalty. In most cases, a person not otherwise benefitting from your estate would be wise to run as fast as he or she can from the prospect of acting as your executor.

As for the person who feels compelled to pick 21 people because 20 might just not be enough, I would point out the following. Unless these people are all a part of your Navy Seal platoon and you’re being sent on a suicide mission in the heart of enemy territory, there’s a good chance that, by picking 2 or 3 people your age or younger, you’ll have at least one person alive to act as your executor. If these people start dying off, you can always rewrite your will at that time. If bad things happen and all of your executors have died, a surviving family member or friend can bring a court application to act as your executor if you have already passed away.

Given the above, I’d typically limit the number of executors (primary and alternate) to 2 or 3. In some cases, there may be good reason to increase the number, but 2 is usually a safe, and 3 is super safe.

How to Choose an Executor

Tuesday, August 4th, 2015

In a will, an executor has a tremendously important job. Sometimes an executor is called an executrix (if female), a trustee, or a personal representative. Regardless of the title used, the job of the executor is to make sure that the instructions set out in your will are followed.

If you’re buying a home and asking a Realtor what is important to consider, he or she may respond by saying, “Location, location, location!” In choosing an executor, my advice would be quite similar. My preferred considerations in choosing an executor are location, relation, and cooperation.

Let’s consider the first part of the triad – location. It matters a great deal where the executor lives. If he or she lives near you and your assets, it will likely be relatively easy for your executor to act for your estate when necessary. However, if your executor of a will lives in another city, province, or country, it will be somewhat more difficult for your executor to do all the things that may be required of him or her, such as selling off your assets for fair market value, interacting with your bank, contacting your creditors, and applying to the local court to probate your estate. While location isn’t everything when choosing an executor, it is a very important consideration.

The second item in the triad is relation. In Canada, an executor is typically someone who is closely related to you. In most cases, spouses and adult children are the best choices for executors. For single people without children, siblings are often good choices. You typically want to pick someone who is close to you and willing to take on the responsibility, someone who is around your age or even younger, and, in many cases, someone who will otherwise benefit from the estate. If your spouse or adult child is already a primary beneficiary of your estate, it makes a lot of sense to consider appointing that person as an executor as well.

The last thing to consider is cooperation. First of all, is the person you’re considering even willing to take on the responsibility? If the answer is yes, will this person be willing to follow the instructions you have set out in your will? If the answer is also yes, will your choice for executor be able to get along with the other beneficiaries. A cooperative person who will happily follow the provisions of your will is likely a good candidate.

So remember, when choosing an executor, think location, relation, and cooperation!