The position of executor: from cradle to grave

By Avi Dahary

Part I – An introduction to the position

This is the first of a 10-part series in which the position of estate executor is explored from the time an individual is named or appointed to the time an estate is wound down.

I have found that unless you’re a ‘professional’ executor, meaning you are or have been an executor of a number of estates that allowed you to garner experience in that role, you probably need considerable professional and skilled guidance in performing your duties — this cannot be stressed enough. I would recommend that even a ‘professional’ executor should obtain some guidance and assistance in fulfilling his/her role.

To start, an executor has a fiduciary duty, which means that he/she has been entrusted with managing and administering the deceased’s estate with the highest standard of care and in the best interest of all beneficiaries.

In assisting many executors whose position has been challenged, I have found some basic principles that could help them avoid many of the objections they often face. These principles can be summed up as follows:

1. Get informed – There’s no shortage of literature with regards to the duties of an estate executor so do yourself a big favour and read as much as possible on this topic. The more you get informed, the more you are aware, the more you will appreciate and comprehend the magnitude of your duties. And please be careful not to fall into the trap of thinking “how hard can it be?” If you don’t get informed, you’ll find the answer to this question the hard way. The safe attitude to take as executor is summed up perfectly by two lines in the song ‘Carry On My Wayward Son’ by Kansas: “And if I claim to be a wise man, well it surely means that I don’t know.” So please don’t pretend to know it all because you probably don’t.
2. Obtain professional, skilled advice and assistance – It is critical to obtain advice and guidance from a lawyer, and I don’t mean any lawyer, I mean a lawyer who specializes in estates, trusts and wills. And, if need be, that lawyer can refer you to other specialists. The same goes for choosing professionals who are important service providers to executors such as an accountant, investment manager, appraiser, auctioneer, etc. Yes, there is a dollar cost associated with retaining the services of professionals but this is money well spent and it provides all parties with a vested interest in the estate, including the executor, a sense of comfort that estate matters are being handled appropriately.
3. Communicate, communicate, communicate – This cannot be overemphasized and preferably the executor communicates in writing (so things are documented.) The practical dimension of communicating is that it paves the way for clarity and minimizes the possibility of misunderstandings. The psychological dimension is that it provides comfort to those with an interest in the estate that their needs, concerns or issues are addressed, and therefore it minimizes the risk of disputes and confrontation. Here, the well-known adage of “less is more” will not work and will most likely produce the unintended effect where, as author Seth Godin put it “The less people know, the more they yell.” And this leads me to the last but not least principle,
4. Transparency – As the executor, your basic objective is to be perceived as honest and fair by all parties who have an interest in the estate. By communicating and making full disclosure of available information in a transparent manner you are presenting yourself as someone who is open to collaboration and co-operation as opposed to someone with a hidden agenda. In the words of the Dalai Lama: “A lack of transparency results in distrust and a deep sense of insecurity.” Since the executor is in a position of trust and is interested in maintaining that trust, providing full disclosure in a transparent manner is a good way to achieve that goal. Of course, like most things, there are no guarantees that this will gain the executor full co-operation, given that in some cases, there will be one or more beneficiaries who are predisposed to being doubtful and mistrusting but, in many cases it will go a long way in gaining goodwill.

Please stay tuned for part two of this series in which I explore the initial steps one needs to take when becoming an executor.