Choosing an executor is one of the most consequential decisions in any estate plan, and one of the most commonly underestimated. The person named in a will carries significant legal authority, and with it, significant responsibility. The role can take months or years to complete, often under conditions of personal loss, family tension, and administrative complexity.
Understanding what the role actually involves, what qualities to look for in the person chosen, and where the limits of an executor's authority lie, makes for a better decision. It also makes the conversation with that person a more honest one.
At a glance
An executor is the person named in a will to administer an estate after a death. Their job is to carry out the instructions in the will faithfully, settle debts and taxes, and distribute what remains to the beneficiaries. The role is demanding and carries legal accountability. Executors can be removed or held liable if they act outside the boundaries of their authority. Choosing the right person, having a direct conversation with them in advance, and naming an alternate are the three most important steps in getting this decision right.
What an executor actually does
Before choosing someone for the role, it helps to understand what they will be asked to do. The scope is broader than many people expect.
An executor's responsibilities typically include:
- Locating the original signed will and confirming its validity
- Arranging or coordinating the funeral and burial, since in most provinces the executor holds the legal authority for these decisions, not the family
- Securing the assets of the estate, including property, vehicles, accounts, and personal belongings
- Applying for probate where required, which is the court process that confirms the executor's legal authority to act
- Notifying financial institutions, government agencies, and benefit providers of the death
- Paying outstanding debts, bills, and any ongoing obligations from estate funds
- Filing the final income tax return for the deceased, and potentially additional returns depending on the type of income involved
- Obtaining a clearance certificate from the Canada Revenue Agency before distributing assets
- Distributing what remains to the beneficiaries according to the will
- Providing a full accounting of the estate to beneficiaries
The process from start to finish can take anywhere from several months to several years, depending on the complexity of the estate, whether probate is required, and whether any disputes arise among beneficiaries.
What to look for in an executor
There is no single profile of the right executor. The decision depends on the nature of the estate, the family situation, and the qualities of the people available. That said, a few considerations tend to matter most.
Trustworthiness
An executor has access to the full extent of the estate, including financial accounts, property, and personal belongings. The person named must be someone whose judgment and integrity are beyond question. This is the most fundamental requirement.
Organization and follow-through
The role involves a significant amount of record-keeping, correspondence, and coordination with lawyers, accountants, financial institutions, and government agencies. Someone who is naturally organized, willing to seek professional help when needed, and capable of following a process over an extended period is better suited than someone who is not, regardless of how close the relationship is.
Availability and proximity
Executors who live out of province may find it logistically difficult to carry out their responsibilities, which can create delays and added complexity. Choosing someone who lives in the same province generally makes the process smoother. In some provinces and territories, appointing a non-resident of Canada as executor can be problematic, and the individual may be required to post a bond before being able to act. Avoiding this added layer of complexity from the start is worth considering.
Emotional steadiness
The executor role begins in the immediate aftermath of a death, often while also managing personal loss. The ability to function under pressure, communicate clearly with beneficiaries, and navigate difficult family dynamics without taking sides is a practical requirement, not just a personal virtue.
Willingness to ask for help
Executors do not have to be lawyers, accountants, or financial professionals. However, they are allowed to hire legal and accounting professionals to assist them. Someone who recognizes the limits of their own knowledge and is comfortable engaging professionals when needed will serve the estate better than someone who attempts to manage everything independently and makes costly errors as a result.
The conversation that needs to happen
Naming someone as executor without telling them is a common and avoidable problem. Even if named as an executor in a will, a person is not required to serve in the role. If someone declines, and no alternate has been named, a court will appoint someone, which removes control from the estate entirely.
The conversation with a prospective executor does not need to be extensive. It should cover a few key points:
- That they are being considered for or named in this role
- A general sense of what the estate involves
- Where the will and key documents are kept
- Whether they are willing and able to accept
This conversation is also an opportunity to hear any concerns the person has about the role. Some people are not aware of how time-consuming executor responsibilities can be, or may have personal circumstances that would make accepting difficult. Finding this out before it matters is far better than finding out after.
Naming an alternate executor
It is worth naming an alternate executor in the will. If the primary executor is unable or unwilling to act, the alternate can step in without requiring a court appointment. If a will does not name an executor, or the named executor cannot or will not serve, then any named alternate will be appointed. If there are no alternates, then the heirs or the court will assign someone.
An alternate is also a practical consideration for situations where the primary executor predeceases the person who made the will, or becomes incapacitated before the estate is settled.
When to consider a professional executor
For some estates, naming a family member or close friend as executor is not the best option. A professional executor, such as a trust company or a lawyer, may be more appropriate in certain circumstances:
- The estate is complex, involving business interests, multiple properties, or significant assets across different institutions
- There is a realistic possibility of conflict among beneficiaries
- There is no one in the person's life who is both trusted and practically suited to the role
- The person does not want to place the burden on family members who are already managing their own responsibilities
It can often be ideal to appoint a professional executor alongside a family member, combining the trust that comes from a personal relationship with the experience and capability of a professional. A notary or lawyer can advise on what structure makes sense for a particular estate.
Professional executors charge fees for their services, which are paid from the estate. These fees vary by institution and by the size and complexity of the estate.
What an executor cannot do
Understanding the limits of executor authority matters both for the person making the appointment and for anyone named in the role. Executors carry significant power, but it is not unlimited, and overstepping it can have serious legal consequences.
Act before the death occurs
A person's estate only forms upon their death. Even if someone knows they have been named executor, they have no power over the estate or how the person manages it while still alive. The executor's authority begins at death, not before.
Change the will
An executor is responsible for carrying out the will as written. They cannot add clauses, remove beneficiaries, alter the distribution of assets, or make any changes to the document. Only the person who made the will can do that, while they are still alive and have legal capacity.
Use estate assets for personal benefit
An executor has access to estate funds and property for the purpose of administering the estate. Using those assets for personal purposes, paying personal debts, taking items before the estate is distributed, or entering into transactions that create a conflict of interest are all forms of self-dealing. Self-dealing is considered a serious breach of fiduciary duty and can have legal consequences.
Distribute assets before settling debts and taxes
Beneficiaries must wait until debts, liabilities, and taxes have been resolved before assets are distributed. An executor who distributes assets prematurely may be held personally liable for any shortfall if the estate cannot cover its obligations.
Ignore the will
The executor's role is to carry out the instructions in the will, not to substitute their own judgment about what is fair or what the deceased would have wanted beyond what is written. Deviating from the terms of the will without legal authority is a breach of the executor's duty.
Act unilaterally if co-executors are named
If the will names more than one executor, they are generally required to act together. One co-executor cannot make decisions on behalf of the estate without the involvement or consent of the others, unless the will specifically provides for this.
A note on executor compensation
In Canada, executors are generally entitled to reasonable compensation for their work, paid from the estate. The amount varies by province and by the complexity of the work involved. In Ontario, for example, courts have historically allowed compensation of up to five percent of the value of the assets administered, though the actual amount depends on the circumstances.
If the will includes a specific provision about compensation, that provision applies. If not, the executor is still entitled to fair compensation, but may need court approval before taking it.
Executors who are also beneficiaries of the estate can receive both their inheritance and compensation for their role, provided there is no conflict of interest.
Frequently asked questions
Can an executor also be a beneficiary?
Yes. There is nothing preventing an executor from being a beneficiary of the estate, as long as they are not faced with a conflict of interest, or there is a danger that they may not treat all beneficiaries equally. For straightforward estates where most assets pass to a single person, it is common for that person to also be named executor.
Can an executor be removed?
Yes. If an executor is not fulfilling their duties, is acting in bad faith, or has a conflict of interest that cannot be resolved, beneficiaries can apply to a court to have them removed and replaced. This process takes time and involves legal costs, which is one reason why choosing the right person from the beginning matters.
Does the executor have to accept the role?
No. Because the duties of being an estate representative are challenging, people have the right to say no. This is why it is smart to name an alternate executor in the will. In Quebec, however, a person may not be able to refuse being executor if they are also the sole heir of the estate.
What happens if no executor is named or available?
If there is no will, or the named executor cannot act and there is no alternate, the court will appoint an administrator to manage the estate. That person will administer the estate according to provincial intestacy laws, which may not reflect what the deceased would have wanted.
Can an executor get help from a lawyer or accountant?
Yes. Executors are entitled to engage professionals to assist with the work, and the reasonable costs of doing so are paid from the estate. Many executors work with a notary or lawyer for probate and estate administration, and with an accountant for tax matters.
Sources
This article draws on information published by the Government of Canada, the Law Society of Ontario, the Chambre des notaires du Québec, the Canada Revenue Agency, and Norton Rose Fulbright Canada. Requirements vary by province and territory. This content is provided for informational purposes only and does not constitute legal or financial advice. Consulting a notary, lawyer, or financial advisor is recommended for guidance specific to a particular situation.
