Administration of Your Estate

07 May Administration of Your Estate

Executor Has A Fiduciary Duty

A person who is appointed as an executor might be flattered that the testator held them in such high regard. But this “honour” comes with a lot of work and personal sacrifice, as well as a fiduciary duty that requires the executor to:

• always act in the best interests of the beneficiaries
• avoid conflicts of interest
• act with a reasonable level of care
• strive to maintain the integrity of the testator’s intent
• act with an even hand when there are multiple beneficiaries, and
• make distribution decisions by fully considering the needs of the beneficiaries and the objectives of the trust.

There are different considerations in Estate Planning depending on the time of life and the circumstances:

A married couple with young children:

• The choice of an executor – Usually can appoint someone who is likely in the same cohort, likely one who will outlive the other
• Support obligations – Must be considered in terms of income needs and funding for post-secondary education. Insurance should be considered.
• Concerns on remarriage – Concerned because of the age of the surviving spouse. Also, the survivor may also have more children with a new partner. A spousal trust could be considered with limits on capital encroachment to preserve assets for the children of the marriage. This is only a consideration where the estate is large or there is a great concern.

A married couple 65 or older with married children and grandchildren

• The choice of executor – Spouse may be elderly or die first, so a successive, or alternate executor is important. This person needs to outlive them, so select adult children, if appropriate or trust company.
• Support obligations – Each has obligations to the other spouse. Beyond this, there may be moral obligations. If there are dependents, they must be provided for. Joint last to die insurance may be useful here if all are healthy.
• Concerns on remarriage – Has not been a major concern. However, due to longevity elders are remarrying which would revoke any existing Will. A spousal trust may be used with consideration of support obligations to the spouse (health care costs, long life, etc.) Rights to encroach on capital can be restricted or prohibited.

Joel Rose

With over 35 years of experience, Joel Rose helps families – and their businesses – to prepare for the future. He offers guidance and support to help his clients create estate plans and succession plans that meet the needs of the whole family. Through his extensive professional and personal experience, Joel is known for his compassion and his ability to find a creative solution to meet each family’s needs.