An executor of a will or personal representative (as it is now termed in Alberta) carries considerable responsibilities.
While it should be regarded as a great honour to be named as the individual entrusted to look after the affairs of a deceased person, it can also be a stressful time. You must carry out the last wishes of the deceased, transfer assets to beneficiaries, and sometimes deal with difficult family members.
The actions of a personal representative are often closely scrutinized. You can be held personally liable for mistakes or misconduct associated with administering a will.
But what are the most common mistakes made by personal representatives? Which actions could lead to legal challenges in the Alberta courts?
It helps to understand where others have gone wrong to avoid making the same mistakes when you step into the role. Following, then, are nine of the most serious mistakes made by personal representatives in Alberta.
Learn More → Should I probate a will without a lawyer in Alberta?
Not understanding the probate process
Probate is a court validation process that most wills in Alberta must pass through before a personal representative can act.
Unless you have educated yourself in the documents and procedures required for a probate application, or hire an estate or probate lawyer to handle everything, mistakes can easily lead to extra delays and costs for the estate.
Not following the will’s instructions
Wills are often written in legal language that is not clear to someone without legal training. This can lead to mistaken interpretations of the instructions they contain.
Executors must understand that the will is the governing document and if there are apparent ambiguities, the advice of a lawyer may be required to explain the options. They should not try to second-guess what the testator meant as mistakes may lead to personal liability for actions.
Poor communication with beneficiaries
The personal representative must communicate regularly with beneficiaries about the status of the will and not withhold information.
This includes responding honestly to queries, keeping beneficiaries informed about probate and the transfer of inheritances, and doing everything possible to communicate clearly and avoid confusion.
Mishandling estate money
The nature of the role of a personal representative means that you will need to handle the assets of the estate. This may include cash with which bills and debts relating to the estate must be paid.
Sometimes, executors mistakenly pay for things with estate money that should be paid from their own funds. No money must be used for any purpose that does not benefit the estate.
Paying beneficiaries before creditors/debts
One of the first jobs of a personal representative is to calculate the debts of the estate. This should be done — and the debts paid with assets — before beneficiaries receive their inheritances.
Otherwise, the estate may be sued by creditors and the executor may even be held personally liable and have to pay back the money into the estate to pay the debt.
Administering an estate is rarely a rapid process in Alberta but a personal representative is expected to complete the process as quickly as possible.
Unavoidable delays with probate and other processes are normal but unnecessary delays are likely to create tension with the beneficiaries.
If a personal representative is unwilling or unable to administer the estate according to their duty, it is best to defer the responsibility to an alternate executor or hire a professional to handle it.
Failing to protect assets
An important responsibility of a personal representative is to locate all assets of the estate and ensure they are protected.
From the time of the testator’s death until an estate is fully distributed to beneficiaries may take a year or more. Assets may deteriorate, lose value, fall into disrepair, or otherwise be spoiled unless the executor takes measures to protect them — for which he or she may be held responsible by the beneficiaries.
Mishandling of personal effects
All of the personal effects of the deceased are rarely itemized in a will so handling these items can often be contentious and lead to disputes between family members — particularly because many may have sentimental value.
The personal representative should be sensitive to this and ensure that all household and personal items are distributed fairly, with any sentimental or valuable items given priority.
Failing to maintain accurate estate accounts/records
Another key responsibility of a personal representative is to maintain accurate estate accounts, which should be made available to beneficiaries at regular intervals and at the end of the administration process.
Evidence should be provided in the form of receipts for assets used to pay estate bills and creditors to avoid awkward questions from beneficiaries.
We’ve covered nine of the biggest mistakes that personal representatives can make when executing an estate. Most of these can be avoided by taking one step…
Seek legal help when probating and executing an estate
Some people attempt to probate an estate and distribute it without legal assistance to save on estate expenses.
While that’s possible for simple estates and there is nothing that legally requires you to hire a probate lawyer, it may be the biggest mistake that a personal representative makes.
With such responsibility attached to the role and the potential for personal liability for mistakes, the majority of executors welcome the peace of mind and protection that legal advice or representation brings. Hiring a probate lawyer can also end up saving money for the estate as it can prevent legal challenges.
We currently have three offices across Alberta — Edmonton, Calgary, and Red Deer. However, we serve the entire province of Alberta. We also have the infrastructure to work with any of our clients virtually — even the furthest regions of Alberta.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take and what to expect moving forward.
Our offices are generally open 8:30 a.m.—4:30 p.m., Mon—Fri.
WILLS and ESTATES LAWYER
Colin is an estate lawyer practicing in the areas of Estate Litigation and Disputes. He emphasizes developing trusted relationships with his clients, ensuring they feel comfortable and at ease sharing the subtleties of their circumstances.