“If you live each day as if it was your last, someday you’ll most certainly be right.” This famous quote serves as a reminder that everyone should prioritize having an up-to-date Will. Yes, thinking and speaking about your own mortality is unpleasant but while the discomfort that may come with will preparation is short-lived, the consequences of not having one can be long-lasting, costly and stressful for friends and family at an already difficult time.
One way to protect your loved ones from potential hardship, costs and family disputes after death, is to ensure that you have a valid Will. There are many reasons why it is extremely important to have a Will. Many people do not know that every estate needs an “executor”, regardless of whether it is a small or large estate. An executor is someone who will be in charge of your estate upon death, someone who will arrange for the funeral, pay your debts and taxes and eventually distribute your assets to your beneficiaries according to your wishes, if there is a will, or according to the rules of intestacy, if there is no will.
In Ontario, every adult has the right to choose an executor for their estate which is done by naming someone in a Will. Because life is unpredictable, it is always a good idea to name more than just one executor, referred to as “alternate executor”. Under the law, executors are considered “trustees” which means that they receive the estate from the deceased “in trust” and in their fiduciary role, they must administer the estate according to the wishes of the testator. Hence, executors are held to a high standard and have certain duties and obligations.
What happens if you pass away without a valid will?
If you die without a will or if you have a will that is invalid for whatever reason, then you have not appointed an executor for your estate and as a result, no-one has legal authority to distribute your assets and close your estate. In these situations, the court will step in and either select an executor for you or a loved one may apply to the court for a Certificate of Appointment as Estate Trustee Without a Will. This sounds easier said than done because even if you are lucky enough to have someone willing to take on the executor role for your estate, he or she must first go through a certain process which can delay the administration of your estate and lead to frustration and unnecessary expense for your loved ones.
Another undesired consequence of not having chosen an executor is that you may have family members, such as adult children, fighting over who should be the executor of your estate or angry relatives who are unhappy with the executor the court has selected.
It is to be noted that while a will allows you to appoint non-family members as executors, the courts follow certain rules that set out who has priority to apply to courts to be appointed as executor of an estate, which are generally the closest family members. In other words, it is possible that the courts choose a family member the deceased was not close to, over a good friend, which may not have been the deceased’s wishes.
When appointing an executor in a will, important considerations must be made with the guidance of an estate lawyer to avoid some of the very common pitfalls with respect to executors.
For example, if you have named all three of your children as co-executors, have you determined what should happen if they disagree?
Many do not know that if your will is silent on this issue, the courts will have to get involved, which means delay, costs and possibly the end of a once well-functioning sibling relationship.
Problems can also arise where an adult child who does not reside in Canada has been appointed as executor.
It is of utmost importance to appoint the right executor for your estate. Not only should it be someone you trust but also someone who will be capable of doing the tasks of an executor. Sometimes, a suitable candidate for this position cannot be found among relatives in which case other options should be explored with the help of an estate lawyer.
Having a well-prepared will is one of the most crucial and satisfying accomplishments in life which should become everyone’s priority.
Written by: Maryam Moradzadeh, Wills & Estates Lawyer