An executor, or personal representative as executors are now known as in B.C., is the person named in a Will to administer and distribute the estate, but what does that exactly mean and entail? It can be tough to determine what exactly this role means without.
The Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the “WESA”) came into force on March 31, 2014 (B.C. Reg. 148/2013) and is the governing legislation in B.C. on matters relating to estates. WESA is what we turn to too, to guide us in answering what this role means. Section 142 of WESA sets out the duties of the personal representative to administer and distribute the estate, generally include:
1. Ensuring appropriate funeral arrangements are made.
Generally, by virtue of the terms of the contract with the funeral home, the person who instructs the funeral director will be personally liable to pay all expenses incurred, but is entitled to indemnity as a first priority against the estate for the reasonable expenses of a suitable funeral (see “Liabilities Relating to the Death—Funeral Expenses” in chapter 11).
2. Taking possession or control of the deceased’s assets.
As soon as possible after death, the deceased’s assets should be safeguarded. Some of the steps that the personal representative should take to safeguard the assets include searching for cash, securities, jewellery, and other valuables, and arrange for safekeeping; arranging for appraisals of the deceased’s assets, such as real property, personal assets, jewellery, and other valuables; checking that there is sufficient insurance coverage for the deceased’s assets (motor vehicle, house, furniture, appliances, computer equipment, jewellery, valuable collections, and so on); arrange for interim management of the deceased’s business until distribution of the estate or until sale of the business and notifying financial institutions of the death.
3. Paying debts and making provision for other liabilities.
A personal representative who has distributed the estate could be personally liable to pay the deceased’s debts and liabilities, even though they have not received notice of their existence. Certain steps should be taken by the personal representative to ensure they do not inherit debts that are the estate’s debts.
4. Notifying beneficiaries.
The duty to let people know that they are beneficiaries exists in respect of an application for probate or administration under WESA, s. 121. There is no obligation, however, to provide legal advice to the beneficiaries.
5. Acting personally, although delegation may be allowed in certain circumstances.
A distinction is drawn between discretionary and administrative powers. At common law, discretionary powers may be delegated only if the will permits. Agents may be employed to perform purely administrative services that the personal representative is not personally qualified to perform, provided the agent is properly supervised and is employed for purposes for which a prudent business person would also have retained an agent.
6. Acting impartially as between the beneficiaries.
7. Ensuring that investments are authorized.
There is a duty to examine the assets and investments and, in general, to convert, in a reasonable and timely manner, assets that do not qualify as authorized investments for the estate (for example, wasting, speculative, unauthorized, or reversionary assets).
8. Insuring against perils.
A prudent personal representative should insure against fire and other perils to the full value of the property. The premiums may be paid out of the income or capital of the estate.
9. Continuing, or bringing and maintaining, actions on behalf of the estate.
10. Keeping proper accounts and being ready to account.
A personal representative must keep proper accounts and be ready at all times to account fully, on reasonable notice, to the beneficiaries about their administration of the estate. In cases in which the assets are insufficient to pay the debts in full, the duty to account also extends to creditors.
Determining whether a person is up for the job to be a personal representative can be a tough question, and may depend on the circumstances of each estate and each executor. Before agreeing to become an executor, or before taking steps as an executor after a loved one has passed, it is recommended that the executor/personal representative seek legal advice about their appointment.
If you have any questions regarding the above or any other legal matter, please do not hesitate to contact our office at (778) 940-3768 or [email protected].
Author: Jennette Vopicka, lawyer
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (778) 940-3768 or any of our lawyers practicing in the area of estate administration at the following:
Jennette Vopicka: [email protected]
Danielle (Dani) Brito: [email protected]
1 Excerpts taken from BC Probate and Administration Estate Manual 1.12