Executor vs Personal Representative
An executor, versus personal representative, is a person or corporation appointed by a testator in a will to manage and distribute his or her estate after death. A testator is a person who makes a will. In Alberta, the term personal representative is used instead of executor. However, a personal representative may also be an administrator appointed by the court.
When it comes to managing and distributing estates, personal representatives have the same powers as the deceased person had while living. However, if the personal representative is an executor—named in the will—he or she can begin handling the estate immediately. In contrast, if the personal representative has to apply to the court for a Grant of Administration giving him or her the legal right to act as a personal representative, he or she must wait to receive the grant before acting.
The executor / personal representative is responsible for identifying and listing the deceased person’s assets and debts; paying debts, income taxes, and funeral costs out of the estate; and distributing the estate’s property to the beneficiaries named in the will. He or she is expected to distribute the assets according to the terms of the will and in accordance with the Estate Administration Act that came into effect in Alberta in 2015.
All personal representatives are entitled to compensation. There are no set fees regarding compensation but the Surrogate Rules provide fee guidelines.
Deciding Whether to Serve as Personal Representative or Executor
Managing and distributing an estate can be relatively easy but it can also be very complex. The executor is responsible for ensuring everything is done properly and in a timely manner, and must act in the best interests of the estate and its beneficiaries.
In most cases, the process goes smoothly and the estate is distributed within about a year. However, sometimes family relationships become strained. Beneficiaries who aren’t kept up to date on what’s going on or who grow suspicious of the personal representative may perceive that the personal representative is doing something wrong and cause stress and even legal fees.
Personal representatives can be held personally liable if they cause the estate any losses, even if it is by accident. For these reasons, you should always think carefully about whether or not you want to accept the appointment. In some cases, you are better off renouncing and letting the court appoint an experienced third party.
Duties of a Personal Representative / Executor
In Alberta, the duties of a personal representative / executor are laid out in the Estate Administration Act. These duties must be carried out properly and in a timely manner.
An personal representative’s duties include disposing of the deceased person’s remains and making funeral arrangements. Note that funeral costs must be paid out of the deceased person’s estate. If the estate can’t cover the costs, the personal representative may be liable.
If the deceased person stated that a grave marker is to be purchased, the executor can go ahead and buy one. If not, the executor should discuss the purchase with the beneficiaries listed in the will.
It is up to the funeral director to register the death and obtain a burial permit.
Estate Administration Checklist
According to the Estate Administration Act, executors / personal representatives have four core tasks they must carry out. Below are the four core tasks and some of the things you must do to accomplish them.
1. Identifying the Assets and Liabilities of the Estate
- Reviewing the deceased person’s filed income tax returns to find income-generating assets and assets such as RRSPs
- Listing the contents of safety deposit boxes
- Notifying the provincial and federal governments of the death so benefits are stopped
- Notifying financial institutions of the death and requesting information about the assets
- Reviewing bonds, warrants, and share conversion rights
- Reviewing an accounting from someone who has been appointed under an enduring power of attorney or trustee appointed under the Adult Guardianship and Trusteeship Act
2. Administering and Managing the Estate
- Ensuring estate property is secure and insured
- Retaining a lawyer
- Advising beneficiaries of property that will pass outside the estate and joint tenancy survivors
3. Satisfying the Debts and Obligations of the Estate
- Advertising for claimants / creditors, if necessary
- Verifying whether claims are legitimate
- Paying debts and claims
- Finding out whether the financial institution will honour cheques not cleared by the deceased
- Reviewing documents such as mortgages and leases and arranging for payments
- Finding out if debts are life-insured
- Reviewing the deceased’s contingent liabilities and deciding what to do about them
- Notifying parties to which the deceased person gave guarantees of the death, in writing
- Determining the deceased person’s and the estate’s income tax or other tax liability
- Filing tax returns and paying tax owing
- Getting tax clearance certificates before distributing the estate
4. Distributing the Estate and Accounting for its Administration
- Distributing the assets of the estate
- Accounting for expenses incurred while administrating the estate
This is a very high-level overview of an executor to do list. To find out exactly what you’ll have to do as a personal representative, talk to your estate/probate lawyer. You can also visit the Executor Duties and Executor Checklist pages on our site to learn more.
As experienced Calgary probate lawyers, we can assist you with your probate.