Many people grant the request to act as executor for an estate as an honour to a loved one. Others feel a sense of obligation and duty to fulfill a testator’s dying wish. Still others who are professionals, accept the role for their clients’ estates. However, an increasing number of people are realizing mid-stream that the role can be quite onerous and time consuming. Furthermore, many are finding out the hard way, that there are a number of risks associated with administering an estate for which one could be held personally liable.
The executor (or estate trustee, as they are also called in recent times) is tasked with the responsibility of wrapping up a deceased person’s affairs and carrying out the instructions in their will or, if there is no will, according to provincial legislation. As such, they are considered fiduciaries- that is, ones who are in a position of confidence or trust in that they owe certain obligations to the beneficiaries of the estate and other interested parties, such as creditors.
Their status as fiduciaries carries with it an obligation to account to interested parties with respect to their actions in administering the estate. This, of course, lends itself to scrutiny and at times accusations of wrongdoing. Some of the areas where there is risk in being accused of making an error while acting as an executor are:
1. Preferring one or more beneficiaries’ interests over another causing a beneficiary to suffer a loss;
2. The timing of financial decisions and action, such as the sale of property, which results in diminished value of an asset;
3. Allegations that the executor has a conflict of interest; and
4. Failure to properly valuate estate assets.
As the potential to be held personally liable for errors is a very real threat to the pocket book of the executor, executor liability insurance has been created to cover the risk. Essentially, these policies offered by Erassure cover executors for the cost of damages and defence as a result of a claim for negligence which the executor would otherwise have to pay personally or which would come from the assets of the estate. The premiums depend on the estimated value and complexity of the estate, type of assets, number and qualification of executors, and the amount of coverage. The premiums may be paid by the executor personally and/or may be payable out of the estate; this question may be decided when the accounts are reviewed and approved by a court. This insurance can provide coverage to co-executors except in the case where there are lawsuits between them. Due to the complexity of estate administration, executor liability insurance cannot be purchased without the assistance of a lawyer.
For further information about the role of an executor or executor liability insurance, please contact Andrea Kelly.
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form