# Executor - how to choose?



## Pluto (Sep 12, 2013)

the question about probate tax in another thread got me thinking about related issues.

How does one obtain an executor of a will if there is no suitable friend or family member?


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## Userkare (Nov 17, 2014)

A lawyer, perhaps?


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## Mukhang pera (Feb 26, 2016)

UserKare is right. Lawyers often act.

So do "professional" executors. You should be able to locate one through any financial or other institution offering estate and trust services.


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## Just a Guy (Mar 27, 2012)

Remember professional executors get paid for their work and they have very little oversight.


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## AltaRed (Jun 8, 2009)

Just a Guy said:


> Remember professional executors get paid for their work and they have very little oversight.


The key is 'they get paid' and provincial statutes provide guidance on payment. They are not cheap. They will rely on associated lawyers and accountants to do the various paperwork, i.e. accountants to do the financials and tax returns and lawyers to file for probate and whatever else needs to be done legally.

There may not be much oversight but again an executor must follow the duties outlined in provincial statutes or risk litigation for negligence (albeit I suspect a lot would have to go wrong for litigation to be successful). I suspect most individuals conected to FI trust services would not stray too far from the common processes already established within the firm.

The OP has a good question that is not easily solved if there is no suitable friend of family member. The professionals won't be too enthused about small estates necessarily and the cost will be huge relative to small estate size i.e. effort is more related to estate complexity than estate value. The court will appoint one if one is not named.

Note: Other than a family member that might do Executor duties for essentially free, everyone else will most likely (legitimately) want to be paid something to do the job. There is no thrill or thanks to this task.


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## kcowan (Jul 1, 2010)

I have several women friends who got thrust into this role upon death of their mother. They stepped up to the plate and hired lawyers and accountants but also dealt with the physical distribution of contents and possessions. It seems that the only attribute they needed was honesty. Perhaps diplomacy in handling the other less capable heirs.


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## fatcat (Nov 11, 2009)

i have been executor on two family estates that were relatively easy ... i would never do it again

a difficult estate or an estate without a will ? ... sheesh, that is a test of patience and forbearance ... and you spent a lot of time with lawyers which is never any fun

mainly because they operate under a set of arcane and largely occult principles which can frustrate the shite out of you


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## Retired Peasant (Apr 22, 2013)

What do professional executors do when it comes to possessions. The rest is basically process, and paperwork, but going through and getting rid of/distributing personal possessions is very time consuming. I can't picture what they do. To me, it's the most stressful part of handling an estate.


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## AltaRed (Jun 8, 2009)

Retired Peasant said:


> What do professional executors do when it comes to possessions. The rest is basically process, and paperwork, but going through and getting rid of/distributing personal possessions is very time consuming. I can't picture what they do. To me, it's the most stressful part of handling an estate.


The typical approach might be to have an Estate sale whereby they hire a company to come in and price everything that is saleable, hold a 1-3 day sale, advertise it in local papers, and take 40-60% of the proceeds (like consignment). That would tend to occur with more 'valuable' estates (been to a few of those sales in a prior life). Alternatively, if there is not much value, obtain bids from flea market/used goods buyers for all, or the majority, of the stuff.

Even my bro and I did a similar thing with our mother's possessions. Firstly, we invited family members in to pick what they wanted which was not much. Then we cleaned out the junk, including donations to various charities like The Thrift Shop. Thirdly, we invited a used goods guy in to make an offer on the rest of the stuff (all or nothing).


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## Mukhang pera (Feb 26, 2016)

fatcat said:


> a difficult estate or an estate without a will ? ... sheesh, that is a test of patience and forbearance




With no will there can be no executor. An executor is someone appointed by testamentary instrument. In the absence of a will, a suitable person must step forward and be willing to be appointed by the court as _administrator_, with or without bond. In the absence of a suitable volunteer, it falls to the Public Guardian and Trustee (the present term in B.C.).


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## Mukhang pera (Feb 26, 2016)

AltaRed said:


> The key is 'they get paid' and provincial statutes provide guidance on payment. They are not cheap. They will rely on associated lawyers and accountants to do the various paperwork, i.e. accountants to do the financials and tax returns and lawyers to file for probate and whatever else needs to be done legally.


In B.C. (and in most jurisdictions I would say) remuneration is quite strictly controlled.

The personal representative, or administrator, is entitled to remuneration to a maximum of five percent of the gross aggregate value, including capital and income, of all the assets of the estate at the date of the passing. Section 88 of the Trustee Act RSBC 1996 c. 464 provides:

* Setting remuneration of trustees and guardians*

88 (1) A trustee under a deed, settlement or will, an executor or administrator, a guardian appointed by any court, a testamentary guardian, or any other trustee, however the trust is created, is entitled to, and it is lawful for the Supreme Court, or a registrar of that court if so directed by the court, to allow him or her a fair and reasonable allowance, not exceeding 5% on the gross aggregate value, including capital and income, of all the assets of the estate by way of remuneration for his or her care, pains and trouble and his or her time spent in and about the trusteeship, executorship, guardianship or administration of the estate and effects vested in him or her under any will or grant of administration, and in administering, disposing of and arranging and settling the same, and generally in arranging and settling the affairs of the estate as the court, or a registrar of the court if so directed by the court thinks proper.

(2) The court or a registrar of the court if so directed by the court, may make an order under subsection (1) from time to time, and the amount of remuneration must be allowed to an executor, trustee, guardian or administrator, in passing his or her accounts, in addition to any other allowances for expenses actually incurred to which the trustee, executor, guardian or administrator may by law be entitled.

(3) A person entitled to an allowance under subsection (1) may apply annually to the Supreme Court for a care and management fee and the court may allow a fee not exceeding 0.4% of the average market value of the assets.

Nowadays, if a Vancouver house forms part of the estate, the remuneration can be quite handsome.

For an interesting recent case on point, see:

http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2541.htm


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## Mukhang pera (Feb 26, 2016)

The kind of executor perhaps best avoided is the one who comes to you on your hospital deathbed, packing a cell phone, used to create video of you purporting to change your will as you are about to expire. In this case, the testator was said to have been depicted expressing the wish for the executor to receive the soon-to-be deceased's condo, valued at $600,000. 

Far be it from me to suggest that this fellow did anything wrong. For all I know, the testator might have beseeched him to take the impugned video, urging him to accept the bequest. After all, as my granny used to say: "Was ya' there, Charlie?" But some might find the optics a tad beyond the pale. See:

http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1404.htm


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## OnlyMyOpinion (Sep 1, 2013)

Mukhang pera said:


> ... Far be it from me to suggest that this fellow did anything wrong. For all I know, the testator might have beseeched him to take the impugned video, urging him to accept the bequest. After all, as my granny used to say: "Was ya' there, Charlie?" But some might find the optics a tad beyond the pale. See: http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1404.htm


Thanks, another fascinating read Mukhang. Glad to know that a cell phone doesn't rule the world quite yetl


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## fatcat (Nov 11, 2009)

Mukhang pera said:


> With no will there can be no executor. An executor is someone appointed by testamentary instrument. In the absence of a will, a suitable person must step forward and be willing to be appointed by the court as _administrator_, with or without bond. In the absence of a suitable volunteer, it falls to the Public Guardian and Trustee (the present term in B.C.).


right, the Public Guardian, thanks for that


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## AltaRed (Jun 8, 2009)

Mukhang pera said:


> In B.C. (and in most jurisdictions I would say) remuneration is quite strictly controlled.
> 
> The personal representative, or administrator, is entitled to remuneration to a maximum of five percent of the gross aggregate value, including capital and income, of all the assets of the estate at the date of the passing.


I knew there were limits but didn't know the ceiling. Thanks.

Added: There must be some additions allowed for really complicated estates with business interests that take years to unwind, e.g. a hostile/dysfunctional partnership arrangement with suits and counter-suits, etc.


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## OnlyMyOpinion (Sep 1, 2013)

Mukhang pera said:


> ... the remuneration can be quite handsome.
> For an interesting recent case on point, see:
> http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2541.htm


Interesting to read that the court provided nearly 1% for interim renumeration ($150k on a $16MMM estate).

When we recently established 1% renumeration for our executor (one of our two children), I took pause at the thought of them earning more than an average year's wage for handling an estate they were ultimately beneficiary to. But they already have a busy schedule, only busier if they have a family in the future. We decided we didn't want them resenting having to handle our affairs, at least from a financial perspective. We can always 'even things out' along the way with their sibling.


Re/ 


Retired Peasant said:


> What do professional executors do when it comes to possessions. The rest is basically process, and paperwork, but going through and getting rid of/distributing personal possessions is very time consuming. I can't picture what they do. To me, it's the most stressful part of handling an estate.


I am speculating here, but I would say it doesn't need to be any different than when an executor from within the family has to distribute tangible personal property among beneficiaries. 
Unless you are assuming there is no one who wants any of the personal affects? In which case there are avenues for appraising and selling, such as an estate auction. Anything unsold would go to charity or the dump.


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## Mukhang pera (Feb 26, 2016)

OnlyMyOpinion said:


> Thanks, another fascinating read Mukhang. Glad to know that a cell phone doesn't rule the world quite yetl


I am pleased that you appreciate my "readers' advisory" service. There are more in my arsenal, just waiting to be rolled out at the right time.


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## twa2w (Mar 5, 2016)

While the maximum executor fee is 5% in most provinces there are a few things to note.
1 - Executors fees are taxable in the hands of executor. Some teststors leave a bequest to the executor separate from other bequests, in lieu of them not taking an executors fee. This is not taxable. It is worded such that the executor can choose to charge the fee but they forfeit that bequest.
2 - professional executors ( non- lawyer) usually charge a sliding scale. The first 500,000 may be 4%, the next million 3.5%, then dropping further as estate gets larger. Fees are even lower if assets are held with associated companies or are liquid.

On the subject of professional executors, here are a couple of points.
1- they don't die, become disabled, so you can be sure they will act on your behalf. Nor do they move across the country or spend the winter in Arizona. If your executor dies 1/4 way through doing your estate, do you know who takes over - in some provinces it is their executor. Do you want your sneaky son in law, or your lawyers wife becoming your executor.
2 - they are impartial and will follow the will as set out. If ambiguous, they will consult a lawyer. They also don't have to have Thanksgiving dinner with the family so less chance of family discord that sometimes happens when one child is named executor.
3 - they can help the testator plan the will to assist with smooth transition, taxes, probate etc.
4 - in terms of personal effects, a professional executor will often recommend a memorandum of wishes. This is attached to the will and basically says, if I own the following personal items at my death, I wish my exec to distribute to the following people. This allows you to leave you favorite fishing lures to your old fishing buddy and your grandfather clock to your neice. As it is not part of the will, it can be updated and changed without consulting a lawyer or changing the will. Usually the will will have a clause that requests the exec honour any m.o.w. found with the will. In terms of non specified items, the exec will meet with the next of kin to discuss how to dispose of personal effects. They usually have contacts with liquidators, auctioneers, collectors to dispose of other items. Often much just gets donated as no resale value above the cost of selling.
5- a pro exec has processes in place to safeguard estate assets, minimize taxes, maximize values.
6 - if you are named as an executor, you can hire a professional executor to handle some of the duties. Most trust companies offer ' agent for executor' and fees are negotiable depending on duties and complexity.
7 - if you have potentially long running trusts in your will, you know the pro exec can administer them over the long term.

So if your estate is large, complex, your will is contentious or your family could be at odds it may be worth investigating.
Normally smaller estates under a few million are not usually worth it.


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## Pluto (Sep 12, 2013)

very informative detailed responses. thanks.

What happens if there is a will, but no executor? And where is the best place to store a will?


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## Mukhang pera (Feb 26, 2016)

Pluto said:


> very informative detailed responses. thanks.
> 
> What happens if there is a will, but no executor? And where is the best place to store a will?


If a will, but no executor, In BC, these provisions of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 would apply:

*Vesting of property on death*
102 (1) On the death of a person, the deceased person's estate vests in the court if
(a) the estate is an intestate estate, or
(b) an executor is not named in the deceased person's will.

*Priority of applicants — administration with will annexed*
131 If a person dies leaving a will, and the executor named in the will renounces executorship or is unable or unwilling to apply for a grant of probate, or if no executor is named in the will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority:
(a) a beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;
(b) a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;
(c) any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee's consent, the Public Guardian and Trustee.

As for best place to store a will, anyplace where it can readily be accessed and found. In BC (and I would expect in other provinces) the legislation provides for a "Wills Notice". The Act to which I referred provides for this in some detail in s. 73 et seq.:

*Filing of notice of will*
73 If a person makes a will, a notice of will may be filed with the registrar general in a form satisfactory to the registrar general.

Often the lawyer who draws the will will retain it and file a notice in Victoria with the Registrar General under the Vital Statistics Act. The notice will set out where the original will can be found.


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## AltaRed (Jun 8, 2009)

Mukhang pera said:


> *Filing of notice of will*
> 73 If a person makes a will, a notice of will may be filed with the registrar general in a form satisfactory to the registrar general.
> 
> Often the lawyer who draws the will will retain it and file a notice in Victoria with the Registrar General under the Vital Statistics Act. The notice will set out where the original will can be found.


That works if a lawyer is on point for the Will. A lot of wills are not done through the legal profession and may, or may not, thus be registered. Or a new one superceding the filed one never gets filed. So while I like the process, it is not foolproof.


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## Pluto (Sep 12, 2013)

Good stuff. Holy smokes. this sure clears up a lot of issues that I was searching for on the internet. I should be sending some of you guys weekly cheques.


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## Mukhang pera (Feb 26, 2016)

AltaRed said:


> That works if a lawyer is on point for the Will. A lot of wills are not done through the legal profession and may, or may not, thus be registered. Or a new one superceding the filed one never gets filed. So while I like the process, it is not foolproof.


Fair enuff. I was responding to the question of best place to store a will. I was not suggesting a foolproof mechanism. 

If a lawyer draws a will, I would say leaving the original with that lawyer is, perhaps, the most "foolproof" way of ensuring that the original can be turned up when needed. While a knowledgeable client should inquire if the lawyer intends to file a wills notice, any lawyer handling any amount of estates work would do so as a matter of course. The will would also be retained in a place with some measure of security and continuity. But, not foolproof. Overall, perhaps more foolproof than being kept at the maker's home, in a safety deposit box (which might present difficulties of access) etc.

As for a lot of wills not being done through the legal profession, I am sure that is true. Many of those might never give rise to difficulties. Quite possibly because no one trained to recognize difficulties gets involved. The lawyers who make wills & estates their bread and butter are probably the safest bet, particularly with anything at all complicated.

Even apparently simple stuff can be a pitfall for the unwary. Wills language is something of an art. Let's say the testator writes: "To my niece Penny, I leave my grand piano." At the time of making the will, the testator owned a Bösendorfer grand piano. But, before he dies, the testator sells that piano and replaces it with a Schimmel grand piano. No problem right? Penny still gets the grand piano. Not so fast Penny. In many jurisdictions, "my piano" will be construed, as a matter of law, as the piano owned when the will was made. Here, the Bösendorfer has ceased to exist. In wills language, the gift of the piano to Penny will be said to have "adeemed". The Schimmel piano will not be the subject of a "specific legacy" to Penny. Rather, it will fall into the residue of the estate, to be distributed accordingly. Niece Penny might share in the residue (along with nephew Clipper for any oldies here who get the reference) or she might not. But unless she is the sole residuary legatee, she's out of luck in getting the piano. The problem would have been avoided that the testator written: "To my niece Penny, the piano of which I die possessed."

Here's a real-life example:

Barnaby v. Petersen Estate 

TRUSTS — Constructive trusts — Court not granting plaintiff's request for trust remedy over house occupied by her and deceased, but instead making monetary award of $50,000. • TRUSTS — Resulting trusts — Court finding no evidence of common intention to own house jointly. • WILLS & ESTATES — Wills — Gifts — Ademption — Testator's will leaving particular house to plaintiff — Testator selling house and buying another house without altering bequest — Gift adeemed.

http://www.courts.gov.bc.ca/jdb-txt/sc/96/13/s96-1355.txt


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## Userkare (Nov 17, 2014)

Mukhang pera said:


> "To my niece Penny, the piano of which I die possessed."


Sounds like she may need to have an exorcism on the piano before playing it. :^}


W.R.T where to keep a will....

For the next-of-kin, or whoever gets the job, finding a will could really be a P.I.T.A! Unless you truly knew the deceased very very well, how do you figure out where they might have stored it for safe keeping? This problem is compounded if the dearly departed kept every single paper bill or receipt for over 10 years, but had a filing system that was, to say the least, disorganized. 

This is what I just went through with an estate. There was a multi-drawer filing cabinet that contained hanging folders. Luckily, this was the only in-house storage of documents. In this cabinet I would find a folder that appeared to contain, for example, Hydro bills; but right in the middle, stuck between two from a few years back, I might find the most current company pension statement or some equally unrelated document. Every folder needed to be carefully searched, and only the two or three most recent bills put aside for reference, account numbers, and contact info. Misfiled documents had to be put where they belong. When that was done, we were then able to find receipts from lawyers that had done other work, but no record of any will. We contacted the lawyers, but still no record of any will. We found banking information, so we knew where to go to ask for the possibility there might be a safety deposit box - even if the bank account statements & passbooks over years and years showed no SDB charges.

So, if one were to prepare a will, I would say that they should make a few copies available. Of course the primary up-to-date document is with the lawyer; but the chosen executor should also have a copy, even if it's sealed. The testator should keep their copy with other important documents like birth certificate and passport - whether in a safety deposit box, or fireproof safe at home. Even if changes are made, and the copies get out of sync, at least there's a trail of breadcrumbs to the lawyer for the current version. Again it's not foolproof, but it's foolish to make it too difficult for your will to be found.


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## Pluto (Sep 12, 2013)

thanks to all who responded. really helpful.


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## OnlyMyOpinion (Sep 1, 2013)

Userkare said:


> ... So, if one were to prepare a will, I would say that they should make a few copies available. Of course the primary up-to-date document is with the lawyer; but the chosen executor should also have a copy, even if it's sealed. The testator should keep their copy with other important documents like birth certificate and passport - whether in a safety deposit box, or fireproof safe at home. Even if changes are made, and the copies get out of sync, at least there's a trail of breadcrumbs to the lawyer for the current version. Again it's not foolproof, but it's foolish to make it too difficult for your will to be found.


Good points. Just to note, the lawyer will not always keep a copy of the will. 

Finding a will - makes me wonder how many people reported as dying intestate actually had a will that was just never located.

Then by some accounts, only 50% of Canadians over age 65 even have an up-to-date will.


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## OhGreatGuru (May 24, 2009)

Just a Guy said:


> Remember professional executors get paid for their work and they have very little oversight.


I would suggest they get a lot more oversight than some unpaid relatives/friends who get stuck with the job. Most of the professionals work for corporations who have internal accounting systems and controls; and they will provide appropriate statements of account to beneficiaries as a matter of course - something amateurs may not even know they are supposed to do.


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## ian (Jun 18, 2016)

My parents had wills and POA's. It made my job as executor so much easier and I was able to fulfill their estate wishes without any issues whatsoever. Even their funerals were pre-arranged.

We have had ours wills professionally done twice. Once ten years ago, once two months ago. From our perspective it is money well spent to be advised properly and to have all the documents in order. We will continue to do this. At the end of the day our children will thank us for it AND the cost associated with finalizing our estate will be minimal. We think that it is good value and it provides a certain amount of peace of mind.


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## AltaRed (Jun 8, 2009)

OnlyMyOpinion said:


> Then by some accounts, only 50% of Canadians over age 65 even have an up-to-date will.


I assert the most important demographic that reqiures Wills and POAs are families with dependent children. Just imagine the mess that can ensue without guardians in place, and management of the financial assets to support said children. I wonder how many of them are spinning the cylinder on a revolver.....?


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## twa2w (Mar 5, 2016)

OhGreatGuru said:


> I would suggest they get a lot more oversight than some unpaid relatives/friends who get stuck with the job. Most of the professionals work for corporations who have internal accounting systems and controls; and they will provide appropriate statements of account to beneficiaries as a matter of course - something amateurs may not even know they are supposed to do.


Very true, and they provide very detailed reports to the beneficiaries including detailed accounting.
You can appoint a professional executor together with a family member or you can name a professional executor with a family member as a consult ( can't think of the proper term). The exec would consult with that member re decisions so you can provide extra oversight if you feel the need.


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