Executors: Can They Refuse to Handle Your Estate?Ed Olkovich
Ken Gallagher, the Toronto Star ethics columnist, answers this question in an article. The short answer is yes. No one can force you to act as executor. You may, however, want to handle an estate, especially if you are a beneficiary. You then have a vested interest in being efficient and economical.
What should readers take away from the article? Gallagher suggests the parents should show their children their will. This is not my typical advice to my clients as an estate lawyer. However, there are exceptions to every rule. That’s why estate planning is personal and no one size fits all solution exists.
Probate makes wills public
Your will is private and confidential until it is probated. Executors file wills with a probate, surrogate or estate court. Then, and only then, is it accessible to the public. You may provide a summary of its contents to your executor but it is not mandatory. However, you should be flexible depending on the factors I list below.
There are plenty of reasons why parents would not want to disclose what’s in their will. There are also reasons why your child as executor wants to know what is in your will.
In my experience, estate planning mistakes are quite common. Mistakes happen because you get bad advice or no advice at all. That is why you need to have your will reviewed. Your executor is not capable of doing this.
Executors’ duties are confusing
I once had a mother call me about her daughter, Helen, who was her executor. Helen told her mother that she was now in charge as executor. The mother could not sell her property without Helen’s consent. The mother wanted to know if this was true.
“No,” I said, “your will does not become effective until you pass away. Your daughter Helen, as executor, has no authority or control until then. You can always change your will and your executor while you are capable. You do not need Helen’s permission nor does she need to sign anything.”
If you revise your estate plan or will, you may have to disclose changes. Beware! You run the risk of starting a family discussion which can escalate into family arguments.
Your age, health and dependency can make you vulnerable to family pressures. These can be difficult to ignore. Will you be prepared to deal with this type of psychological stress?
Disclosure raises the issue of your estate planning priorities. Consider these three factors before revealing what is in your will.
1. Your needs – based on your age, spousal status and health
2. Your beneficiaries – how many children/beneficiaries do you have and how you treat them in your will?
3. Your estate – the type of estate assets you have
Let’s look at this last one in more detail which is less complicated.
What are estate executors required to do?
Administering an estate can involve special consideration. You need to prepare your executor for special duties.
Consider this especially if you are dealing with any of these in your will:
• business interests, farm or family business
• burdens of rental properties
• succession of a vacation or cottage property
• special-needs beneficiaries
• maintaining trusts
• substantial debts
• special collections like art
• foreign assets
These items/beneficiaries require greater time commitments and expertise from executors. They will need to obtain professional advice. You may wish to introduce your executor to your dream team of professional advisors before the time comes.
You can recommend you’re executor hire these professionals. However, this is not legally binding on your executor.
No school for executors existed until now
Most executors do not have any experience.
They may be familiar with your family business or property management but acting as executor involves different duties.
You or your executor can learn about executor duties. I designed ExecutorSchool.com for those without any legal background.
See my related blog post:
About Edward Olkovich
Edward Olkovich (BA, LLB, TEP, C.S.) is a nationally recognized author and estate expert. He is a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of Executor Kung Fu. Visit his website, mrwills.com, for more free valuable information.
© Edward Olkovich 2013