Estate planning, especially appointing your executor, is a complex task that requires going through several details. Once your client has chosen someone to be their executor, it’s your job to make follow-up questions. Things like who, what, when, where, and why are important in gathering information about the executor.
Moreover, you should also make it clear to your client that they have to be particular about their chosen executor of the estate. Here are the five questions that you need to ask the testator before drafting the chosen executor on their will:
WHO – The Person Your Client Wants To Appoint as Executor
The chosen executor may be a family, friend, business partner, or independent professional trustee. As your client chooses an executor, you should review the possible conflicts of interest that may happen with them.
For instance, if an estate inherits a business and the executor is involved in a shareholder’s agreement with the deceased, a possible conflict of interest may be present. Meanwhile, an independent professional trustee may be the best bet for a neutral third party.
Moreover, it is essential to let the client know that the position of executor is a job, and under provincial legislation, they are eligible for fair and equitable pay.
WHAT – The Executor’s Age, Job, and Relationship With the Beneficiaries
An executor has to be at least 18 years of age to perform their duties. An immature or elderly executor may be a risky option. On the other hand, if the executor is the same age or older than the testator, a younger individual or a trust company should be listed as backup executor.
The executor’s profession is also considered to assess whether they have the time, capacity, and temperament to carry out their duties. That includes whether the executor and the beneficiaries are on good terms. Sometimes, a combination of individuals and a trust company is the best fit as co-executors.
WHEN – Whether the Executor Has Been an Executor Before
Some families have an appointed executor who has carried out the will of several family members in the past. Since the job of an executor is only really learned by doing, these individuals are invaluable to the family.
On the other hand, it can get really overwhelming if it is an executor’s first time to act with this duty. So the testator must have a conversation with the executor beforehand to make them comfortable with their responsibility.
WHERE – How the Executor Lives in Relation to the Testator
An out-of-country testator can make the estate a foreign trust, therefore, creating tax issues. An out-of-province executor may also lead to additional expense if a bond is ordered to be made in court. It may result in tax, financial, and practical issues for administering the estate. So the client must be informed that having an executor within the proper legal jurisdiction is the best option.
WHY – Whether the Executor Is the Best for Administering the Estate
An executor is legally held to fiduciary duties, so the testator must trust the executor. Moreover, the individual and/or trust company appointed as an executor must be trusted and also trusts the beneficiaries, including family members and advisors. More importantly, according to their fiduciary duties, they must carry out the testator’s final affairs and legacy.
Your job as an estate professional is to ensure that your client is aware of all decision-making factors involving estate planning. You should also ensure that you understand the client’s thoughts and feelings before acting for them. These five W questions should serve as your guide.
Ontario Wills provides quality legal advice. We are a team of wills and estate planning lawyers in Ontario working with multiple clients in various cases, offering the best advice as we see fit with their unique circumstances. We don’t believe in a one-size-fits-all approach, so we take the time to understand the wants and needs of our clients before acting for them. If you need assistance in estate planning, we are here to help. Get in touch with us today.