Wills

A personal representative is called an executor or trustee when named in a Will. When appointed by the Court, a personal representative is called an “administrator.”
The administration of an estate consists of three major tasks that are the responsibility of the personal representative:

• determine and safeguard the assets
• pay debts and liabilities
• distribute the estate in accordance with the Will, or, if there was no Will, in accordance with the rules set out in the Wills, Estates and Succession Act (WESA).

If there is no valid Will, or if the person named as executor in the Will is unable or unwilling to act, then the court will appoint one or more of the beneficiaries of the estate or under the Will as administrator(s). In exercising this discretion, the court will ordinarily give priority to the person(s) having the greatest interest in the estate. Naturally, it is possible that such person(s) are not suitable to discharge this function. Also, there will always be some uncertainty as to which of beneficiaries will be appointed by the court.
Thus it is possible that disagreements will arise as to who should be appointed, leading to delays, bad feelings, and cost.

There are a number of ways in which having a Will can reduce the costs that will be incurred in administering the estate. For example, if there is no Will, additional administrative expense will be incurred. For one thing, the court procedure to obtain a Grant of Administration on intestacy is often more complicated than an application for Probate of a Will, and thus leads to increased legal expense. This occurs in part because the court must choose the personal representative, unless all beneficiaries are adults and agree to who it should be. Further expense will also be incurred because the applicant will have to be bonded or enter into some other arrangement to secure his or her performance as administrator, unless the consents of all creditors and beneficiaries have been obtained. Any required bonding fee will be payable annually until the estate is wound up and a court order obtained to cancel the bond.

Not surprisingly, many of these complications may also slow down the administration of the estate. Seeking the consents of creditors and of those persons equally entitled with the proposed applicant to the Grant of Administration, applying for a bond where required, and, where necessary, speaking to the application in court, can add several weeks to the administration.

Furthermore, if you have minor children (under the age of 19), you have the right to appoint in your Will a person or persons to act in your place on your death as guardian(s) of your infant children.

A guardian can have duties with respect to the management of an infant’s property (a guardian or executor of the estate), duties with respect to the custody of the person of an infant (a guardian of the person), or both sets of duties. A guardian of an estate has a function somewhat similar to the function of an executor, and consequently, should have similar characteristics. Naming the same person as both guardian and executor puts that person in a position of conflict of interest, and this may interfere with the proper administration of the estate. Depending on the character of the individual placed in this position, this conflict may result in the guardian being either over or under generous in reimbursing himself for expenses incurred on behalf the child. Either way, the best interests of the infant may not be served. For this reason, unless you are completely satisfied that the chosen individual can properly discharge both functions, it is usually best for different individuals to be given these functions.

The guardian of the person of an infant has a nurturing role. As such, these guardians do not need the same degree of business experience and expertise as the guardians of the estates require. Instead, you must consider their moral standards, their parenting skills, their thoughts and beliefs on education, religion, and societal responsibility, and what time and energy they have available to take on the job.

Caring for the persons of infants inevitably will impose a significant financial burden on the guardian. To help offset this burden, clients often wish to make a gift to the guardian. Because of the potentially transitory nature of the guardian’s role, it is usually better for the client to ensure that the terms of their Will permit the executor to pay all expenses incurred by the guardian for the benefit of the infant out of the infant’s share of the estate, even where such expenses may incidentally benefit the guardian.