One, if not the most important, decision to be made by someone who is making a will is who to appoint as the executor - also called Estate Trustee. Your executor is responsible for ensuring that the terms of your will are carried out.
Factors to keep in mind:
1. CAPABLE
Choose someone who likes to keep records, is a detail person, meets deadlines and completes tasks, since your executor must account for each and every financial act taken by him or her while acting as Executor.
2. AGE
Choose someone who will not be, say, more than 65 at the time your estate is to be completed, as everyone deserves to retire. If the trusts in your will end when your youngest child is 30, calculate how old your executor will be and decide if you are being fair to that person.
3. WISDOM
Choose a person who has business and investment sense as well as wisdom enough to know when to retain the expertise of accountants, investment advisors, tax advisors and lawyers, and to follow their advice.
4. PEOPLE SKILLS
Your executor needs the skills to deal with your beneficiaries and guardians of your children. The guardians should receive money from your estate to defray the costs of raising your children, the amounts to be agreed upon by your executor and guardians. Beneficiaries can sometimes be unreasonable in their expectations and very demanding.
5. CONFLICT
You should be aware of the potential to create conflicts between your executor, the guardians of your children, your spouse, and your children. If you feel a conflict could arise between any two of your guardian, your children and executor, you should not appoint the same person as both guardian and executor. Similarly, if you are in a second marriage situation and have created in your will a trust, with the income to go to your spouse for her life and on her death to your children from your first marriage, then you should not give control of investment and distribution decisions, to either your children alone, or your spouse and her children. You may consider appointing one representative from your family, one from your spouse's (or your spouse) and a neutral third person with a majority decision to prevail.
6. TRUST COMPANY
Consider using a trust company or other professional: if your affairs are complex, if there could be controversy, if there may be conflict, if there is not one in whom you have confidence, or your ideal executors live outside the province.
7. NUMBER
If you appoint more than three executors, provide that a majority decision will prevail. The more persons that you appoint the longer it will take to make decisions and it can be more expensive for your estate.
8. ASK
Obtain the consent of your proposed executor before naming him or her in your will. No one who is named as executor is obligated at law to assume the responsibility. If the named person declines, then either the consent of your next of kin or a court application will be needed to appoint a new executor. This will cause an unnecessary expense if no agreement among your next of kin can be reached.
9. CONFIDENCE
You must have confidence that your executor will do all the right things.
10. REVIEW
Periodically, review your choice to ensure that your choice still meets your criteria.
Garry Rishor is the senior partner of Howell Fleming LLP.
