Learn More about the Law
Wills
and Estates
Question:
I understand that, in my Will, I can name the person whom I want to carry
out my wishes. How do I choose that person? What is his/her job?
Answer:
The person you refer to is called an "Executor"(or "Executrix"), and is also known as a "Personal Representative".
Choosing your Executor is a very important decision, because that person
will have the responsibility of gathering together all of your assets
and liabilities, paying your debts and disposing of your assets in the
way that you instruct in your Will. One might say that your Executor has
to be part lawyer, part accountant, part investment adviser and, heaven
forbid, mediator-peacemaker among your heirs. In the end, it must be a
person who you can trust and in whom resides the unique talent of "common-sense".
Just because you name a person as an Executor in your Will does not mean
that person is obliged to act in that capacity. Therefore, speak to him/her
in advance to make sure he or she is willing to act.
Choose someone who knows what it means to be an Executor. The mere fact
that someone is a professional (lawyer/accountant/investment counselor)
does not mean they have dealt with Estates.
Consider the age of the person you choose and be prepared to make a change
in your Will to change the Executor in the event that you both grow "long
in the tooth" together.
If you choose to appoint children as Executors, and you have more than
two children, I recommend that you limit the number to two. If you appoint
just one, the others may be constantly "nipping" at his/her
heels. Appointing two always appears (and in practice is) more settling
for everyone concerned. In some cases, however, you will not be doing
your children a favor by placing them in this unenviable position of authority.
Use good judgement.
The identity of your Executor(s) should not come as a surprise to your
family at the time of your death. Tell them who you have appointed as
Executor so that they will know in advance the type of person that they
will be dealing with and who to contact in the event of death.
Provide your Executor with a copy of your Will. Many lawyers will see
that you are given a form to complete and pass on to your Executor with
the copy of your Will. This form includes such information as your social
insurance number, the location of your safe deposit box (and key), your
life insurance policy numbers (and location), your deeds, your mortgages,
your list of investments, your computer passwords (or at least where to
find them), etc. This will substantially reduce the time taken by your
Executor in chasing this information down.
Speak to your Executor about what he/she will charge as a fee to perform
this service. The fee is almost always expressed in terms of a "commission"
or percentage of the value of the Estate. Generally speaking, the greater
the value of the Estate, the lower the commission. You almost never see
a commission exceeding 5% and, if your Estate is large, you often see
commissions in the 2% to 3% range. As well, an experienced lawyer will
ensure that assets that do not require the active participation of the
Executor are left in such a manner that the chargeable commission is not
applicable - or at least will advise you on that matter so that you can
make an intelligent decision. This is applicable to real estate specifically.
Lastly, in this RRSP season, be aware that you can designate the beneficiary
of your RRSP in your Will, if you have not done so in a specific declaration filed with your RRSP provider. Generally speaking, it is advisable to designate
your spouse because your spouse will have certain elections available
to him/her under the Income Tax Act (Canada) which will allow for the
deferral of tax in certain circumstances, depending upon which elections
are exercised.
Making a Will and appointing your Executor is a serious matter. Get advice
from a lawyer who is active in estate planning and practice.

Kentville, Nova Scotia, Canada
t. 902.678.2157 • f. 902.678.9455
 
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