Although many consider it an honour to be asked to act as an executor, the responsibilities involved can be complex and time consuming. Understanding them will assist you in choosing the person best suited to be your own executor, and ensure any decision you may make to act as an executor is an informed one.
The duties of an executor include the identification and collection of the assets of the estate, the safeguarding and investment of those assets pending distribution to beneficiaries, the payment of debts and liabilities owed by the estate, the filing of appropriate tax returns for the deceased and the estate, and ultimately the distribution of assets to beneficiaries in accordance with the provisions of the Will. What follows is a closer look at some of these and other responsibilities.
An executor must use reasonable efforts to locate the last Will of the deceased. Even where a Will has been identified, this means searching through all of the places where the deceased kept his or her papers and records (and under the laws of some provinces, on electronic devices) to ensure it is the most recent Will made.
If only a copy of the Will is found, the executor should check with the lawyer or law firm who prepared the Will, if identifiable, to determine the whereabouts of the original Will. If a trust company is named as an executor, it should be contacted to determine whether it holds an original Will in safekeeping or has information concerning its whereabouts.
In British Columbia, a search of the Division of Vital Statistics Wills Registry must also be conducted. The Will Search Certificate issued in response will indicate whether a Will Notice was ever filed by the deceased. If so, the Notice will confirm the date and location of the original Will.
Being named as an executor comes with significant responsibilities, but what exactly can you do before probate is officially granted? This question often confuses many people who find themselves in this role after a loved one passes away.
As someone who’s helped many readers navigate this tricky period, I want to clear up the confusion about what executors can (and cannot) do during that pre-probate limbo The time between someone’s death and receiving official probate authorization can be challenging, but there are actually quite a few important tasks you can and should handle
What is an Executor?
Before diving into specific duties, let’s clarify what an executor actually is An executor is the person named in a will to administer the deceased person’s estate Your main responsibility is to carry out the wishes of the deceased as stated in their will, ensuring that assets are distributed appropriately to beneficiaries.
Pre-Probate Actions an Executor Can Take
Even without formal probate authorization, there are several important steps you can take to protect and prepare the estate:
1. Secure Assets
One of your most immediate responsibilities is safeguarding the deceased’s property and valuables, This includes
- Locating and securing valuables: Change locks if necessary, move valuable items to safe locations, or arrange for appropriate insurance coverage.
- Collecting outstanding debts: You can begin gathering money owed to the estate, such as unpaid rent or personal loans.
- Canceling credit cards and subscriptions: This prevents further charges on the deceased’s accounts and reduces potential fraud.
2. Pay Funeral Expenses
You’re authorized to arrange and pay for reasonable funeral and burial expenses using the estate’s funds. This is one of the few financial transactions you can make before probate is granted.
3. Notify Beneficiaries
It’s important to inform beneficiaries about the death and provide general information about the probate process timeline. This helps set expectations and reduces anxiety about when they might receive their inheritances.
4. Gather Essential Information
This critical step lays the groundwork for the probate application:
- Identify assets and liabilities: Create a comprehensive inventory of property, accounts, investments, and debts.
- Locate the original will: You’ll need this to file with the probate court.
- Contact relevant professionals: Reach out to lawyers, accountants, and financial advisors who can assist with estate administration.
5. Take Inventory of the Estate
Develop a detailed catalog of all estate assets, including:
- Real estate: Homes, land, and other properties
- Personal property: Vehicles, furniture, jewelry, and other belongings
- Financial assets: Bank accounts, investments, stocks, bonds, and retirement accounts
- Digital assets: Online accounts, social media profiles, and cryptocurrency
6. Obtain Preliminary Asset Valuations
Getting approximate values for major assets helps estimate the overall estate worth, which you’ll need for probate applications and potential tax filings.
7. File the Will with the Probate Court
You should submit the original will to the appropriate probate court to initiate the probate process. This doesn’t grant you immediate authority, but it starts the legal proceedings.
8. Apply for Letters of Administration
If the deceased didn’t leave a will, you’ll need to apply for Letters of Administration from the probate court. This is similar to probate but applies in cases of intestacy (dying without a will).
What an Executor Cannot Do Before Probate
Understanding the limitations is just as important as knowing what you can do. Before probate is granted, an executor cannot:
- Distribute assets to beneficiaries: Even if the will clearly states who gets what, you must wait for court approval.
- Sell estate property: Without court authorization, you cannot sell real estate or other significant assets.
- Pay debts (except funeral expenses): Other creditors generally must wait until probate is granted.
- Make significant financial transactions: Major financial decisions require court approval.
- Sign an unsigned will: If the deceased left an unsigned document, it cannot be validated after death.
- Change any provisions in the will: The executor has no authority to alter the deceased’s wishes.
- Block beneficiaries from contesting the will: While contests can complicate matters, beneficiaries have the legal right to challenge the will if they choose.
Special Considerations: Rental Properties
If the estate includes rental properties, there are specific considerations to keep in mind:
Can an Executor Rent Out Property Before Probate?
This is a gray area that varies by jurisdiction. Generally speaking, entering new lease agreements before probate is granted can be problematic because:
- Leases are binding contracts that create obligations for the estate
- Without formal authority, these agreements may be unenforceable
- The action could potentially be seen as exceeding your fiduciary duty
If a property is already rented when the person dies, you can typically collect rent payments and handle essential maintenance, but creating new rental agreements usually requires probate authority. In some cases, you can petition the court for special permission if renting would clearly benefit the estate.
The Executor’s Fiduciary Duty
Throughout the entire process, remember that you have a fiduciary duty to act in the best interests of the estate and its beneficiaries. This means:
- Managing assets carefully
- Avoiding conflicts of interest
- Not favoring certain beneficiaries over others
- Keeping detailed records of all actions taken
- Being transparent with beneficiaries
What Happens if You Mismanage the Estate?
The consequences of overstepping your authority or mismanaging the estate can be serious:
- Beneficiaries can petition the court for a full accounting
- You could be removed as executor
- You might be held personally liable for financial losses
- In extreme cases, you could face civil lawsuits or contempt of court
Working with Multiple Executors
Many wills name more than one executor, which can create questions about authority and coordination:
Can One Executor Act Without the Other?
If multiple executors are named, the expectation is that they’ll work together. However:
- One executor may renounce their position by signing a Deed of Renunciation
- Remaining executors can petition for probate in the absence of others
- Alternatively, active executors can request probate with “power reserved” for inactive executors
If an executor wants to step down after already participating in estate administration, the situation becomes more complicated and typically requires legal advice.
Practical Tips for Pre-Probate Management
Based on my experience helping readers through this process, here are some practical tips:
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Keep meticulous records: Document everything you do, especially any expenses paid from personal funds that will need reimbursement.
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Communicate regularly: Keep beneficiaries informed about your actions and the progress of the probate application.
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Don’t make promises: Avoid telling beneficiaries exactly when they’ll receive assets or specific amounts they might get.
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Get professional help: Consider working with an estate attorney, especially for larger or more complex estates.
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Use separate accounts: Don’t mix estate funds with your personal money.
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Be patient: The probate process takes time, sometimes many months, so pace yourself for a marathon, not a sprint.
Final Thoughts
Being an executor involves navigating a careful balance between taking necessary actions to protect the estate and waiting for legal authority to make major decisions. By understanding what you can and cannot do before probate, you’ll be better equipped to fulfill your responsibilities effectively while avoiding potential legal complications.
Remember that while this guide provides a general overview, estate laws vary by location. It’s always wise to consult with an estate attorney for guidance specific to your situation, especially if the estate is substantial or involves complicated assets.
Have you been named as an executor? What challenges are you facing in the pre-probate phase? Feel free to share your experiences in the comments below, and I’ll do my best to address your questions!
Funeral and burial arrangements
Although funeral and burial arrangements are usually made by family members, it is the executor who has the legal authority to make those decisions. Interestingly, directions contained in a Will as to the wishes of the deceased are not legally binding on an executor, although they are generally followed. When making funeral and burial arrangements, unless the Will directs otherwise, an executor must ensure the costs are reasonable in light of all of the relevant circumstances.
The laws of many jurisdictions require an executor to mail a notice of his or her intention to probate the Will, together with a copy of the Will, to all of the beneficiaries referred to in the Will. In some jurisdictions, such as British Columbia, these materials must also be sent to the persons who would have been entitled to share in the estate of the deceased if he or she had died without a Will (i.e. the next of kin of the deceased), even if they aren’t named as beneficiaries.
If any individual is a minor or is mentally incapable, additional notice requirements will apply.
Paying cash legacies and satisfying specific bequests
After the general administration of the estate has been completed, absent litigation or some other complicating factor, the executor will be in a position to pay any cash legacies contemplated in the Will and deal with the transfer of any personal effects and other tangible property left to specific individuals. A signed Release, and in some cases a Release and Indemnity, should generally be obtained from a beneficiary before any such payment or transfer is completed.
WHAT SHOULD AN EXECUTOR DO BEFORE AND DURING THE PROBATE PROCESS?
FAQ
What does an executor do in a probate case?
The executor needs to pay any debts owed by the estate. He or she needs to make sure that the estate has paid all taxes. After paying the debts and caring for the assets of the estate, the executor will oversee the distribution of the remaining estate assets to the beneficiaries. Can a property be put on the market before probate is granted?
What does an executor do when a person dies?
One of the first things an executor must do is secure the estate. This may mean locating all the deceased person’s assets, getting keys to property, and ensuring that someone is managing any business the decedent owned. During this time, they must also notify the heirs that the estate is in probate.
Can an executor sell property before probate?
At All About Lawyer, she simplifies complex estate laws so families can protect their assets, plan ahead, and avoid legal headaches during life’s most sensitive moments. No, an executor generally cannot sell property before probate. Your authority begins only after a court grants Letters Testamentary.
How does a will appoint an executor?
The petitioner must ask the court to appoint an executor, even if the executor is already named in the will. Some states allow certain other interested parties in addition to the executor named in the will to file a probate petition. Once the court approves the probate petition, it will open the probate case.
How does an executor manage an estate?
In order to effectively manage the estate, the executor will probably need to open an estate bank account, take measures to secure and maintain real estate and other property, and make investment decisions. Managing the estate may also involve selling assets, collecting debts, or transferring assets to beneficiaries early.
Do all executors have to apply for probate?
Often more than one executor is named in a will, but not all of the executors have to apply for probate. A maximum of four people can apply to the Probate Registry to prove a will and be named on the grant of probate. What if the executor does not distribute the estate after probate?
What control does an executor have over a will?
… makes sure all debts are paid, all taxes paid, all assets cared for, then distributes the remaining assets to the beneficiaries in accordance with law and …
What can you do while waiting for probate?
- Take steps to protect residences. …
- Keep up with regular house maintenance. …
- Lock up valuable items. …
- Keep track of personal valuables. …
- Secure and maintain all vehicles.
Can an executor do anything before probate?
Although there are some exceptions, it is usually against the law for you to start sharing out the estate or to get money from the estate, until you have probate or letters of administration.
Can an executor access bank accounts before probate?
Generally, financial institutions require wills to be probated before releasing assets to the executor.
