What is involved? Being a personal representative
What is a personal representative (previously known as an executor)?
A personal representative is the person named in a will to carry out the directions contained in that will. The personal representative is responsible for settling the person’s affairs after death. The person’s estate (everything he or she owned) passes temporarily to the personal representative.
The personal representative is responsible for:
- locating all of the person’s assets (everything the individual owned);
- paying the funeral costs;
- applying for probate (a legal procedure confirming the will can be acted upon),
- paying the person’s debts (money that is owed) and taxes; and,
- distributing the remaining money and property according to the instructions in the will.
The personal representative is accountable to the beneficiaries (people who benefit from the will) and must keep them informed. The personal representative can seek assistance from lawyers, accountants, and other professionals but ultimately he or she is legally responsible for carrying out the directions in the will.
Who can be a personal representative?
Any adult can be a personal representative, but being the personal representative of an estate can be a complex, difficult job. Accordingly, a personal representative should:
- be honest and trustworthy;
- be capable of doing the job (you do not need to be an expert, but you should at least be someone who does a good job of managing your own affairs); and,
- have the time and willingness to do the job.
In addition, it is convenient if the personal representative lives in the same city, or at least the same province, as the testator (the person who made the will). This factor, however, should not overshadow the above three criteria. A person who is trustworthy, capable and willing is more suitable that someone who is not, even if she or he lives on the other side of the country.
In many cases, family members, such as a spouse or adult child, are named as the personal representative. They will usually have personal knowledge of the wishes of the testator and the nature and whereabouts of his or her assets, and often will not charge a fee for their work.
How difficult is it to be a personal representative?
Being named as a personal representative of an estate can be a big undertaking requiring a considerable amount of time, energy, and careful attention to detail. It can also require both a significant amount of tact and peacekeeping.
The task can be fairly straightforward if you are a personal representative of a small and simple estate, such as one with only a car, a house, some personal belongings, and a bank account.
On the other hand, the job of personal representative may be considerably more complicated if:
- there are many beneficiaries and they are difficult to locate;
- the testator owned a business;
- the testator had a lot of investments and debts;
- the will includes a trust (set up to ensure ongoing income for a beneficiary such as minor or dependent children); or,
- the will is challenged by someone who feels left out of the will.
What are the duties of a personal representative?
The Estate Administration Act states that a personal representative’s main duties fall under four categories.
- Identifying the estate’s assets (things owned) and liabilities (what is owed), including:
- getting a list of safety deposit box contents;
- making a list of all property owned, including outstanding mortgages; and,
- applying for pensions, death benefits, and life insurance payable to the estate.
- Administering and managing the estate, including:
- communicating with beneficiaries;
- advising insurance companies of the death;
- managing, protecting, and securing the safety of the estate property; and,
- recordkeeping, including preparing financial statements.
- Paying the debts of the estate, including:
- filing and paying income tax; and,
- arranging for payments of outstanding expenses.
- Distributing and accounting for the administration of the estate, including:
- finding and notifying all beneficiaries listed in the will;
- informing any joint tenancy beneficiaries;
- informing any beneficiaries outside the will (i.e. life insurance recipients);
- managing any trusts; and,
- distributing the estate property.
I have just been asked to be a personal representative. Do I have to agree?
If someone asks you to be a personal representative and you don’t want to do the job, you can simply say no. It’s best to agree to act as personal representative only if you feel you can do the job well and give it your time and attention. Be sure to also consider any family dynamics in taking on the job.
I have just agreed to be someone’s personal representative. What information should I get right now?
Consider requesting some of the following information:
- The testator’s wishes regarding his or her funeral or memorial service and cremation and/or burial.
- Details of where the original will and any codicils (a document changing a will) are kept and how to access them. You should also have copies of all these documents.
- If appropriate, details of everything that the testator owns and owes. For example, bank accounts, RRSPs or RRIFs, insurance policies, real estate, and pension benefits. Note any items that are owned in joint tenancy (where there are two or more property owners) or that name a specific beneficiary, as these items are dealt with outside of the estate.
- The names and contact details of any person named as an attorney in a power of attorney and any person named as an agent in a personal directive.
You should also consider asking the testator to:
- Keep an up-to-date, detailed record of all that she or he owns and owes and to let you know where this updated list can be found.
- Talk to family members and any other beneficiaries about what his or her plans are for the estate so that future problems can be prevented.
- Keep you informed of any updates or changes to the will and/or codicils.
I am receiving a gift under my wife’s will. Can I still be her personal representative?
Yes. A personal representative can also be a beneficiary under the will. It is very common for spouses to be named as personal representatives for one another.
Can I get paid for being a personal representative?
Often, a personal representative does not accept a fee, especially if it is a spouse, adult interdependent partner, family member, or close friend. Any expenses the personal representative has while settling the estate are paid for out of the estate.
Sometimes a will states an amount that is to be paid to the personal representative as a fee. If it does, this is the maximum the personal representative can receive.
If the will does not list any fee, the personal representative may apply to the court for “fair and reasonable” compensation when he or she prepares the accounts for the beneficiaries to approve. If the beneficiaries do not agree with the proposed fee, they can require the personal representative to show his or her accounts to the court, who will then set the fee. Even if the personal representative is also a beneficiary, she or he may still apply for a fee, unless the will says that this cannot happen.
Sometimes the will leaves the personal representative a special gift for doing the job. In such a case, the personal representative can still get a fee, but only if the will allows.
If there is more than one personal representative, the fee is split, but not necessarily equally. It depends on who does the most work.
I agreed to be a personal representative, but now I have changed my mind. Can I get out of the duties to which I had previously agreed?
If the testator is still alive, you can change your mind at any time. Let the testator know as soon as possible so that she or he can ensure that the will is properly changed.
You can also resign later, after the person has died. The law says, however, that in order to do so, you must apply to court for permission to give up the role.
If there are two or more personal representatives, the other person can take over.