How Executors Avoid Personal Liability. Lynne Butler

      You are an executor. Most of us who act as an executor do so only once in our lives, and for most, once is plenty. The person who named you as his or her executor probably intended it to be an honour for you, but it may not always feel that way once you start the actual work. It can be a tough job. There are stacks of unfamiliar paperwork, and endless discussions with lawyers, accountants, land title clerks, and bankers. There are countless questions from family members, not all of which you know how to answer. There are laws to learn and new procedures to follow.

      The majority of executors are completely unprepared for the job in the sense that there is no official training for it and they have to feel their way along as they go. Who could blame you for wondering what you have gotten yourself into?

      It is also true that beneficiaries are becoming more willing to consult the courts when an estate grinds to a halt due to what they may feel is executor mismanagement. At one time, estates were considered private family affairs and, at times, privacy was maintained at the expense of proper estate administration. Litigation is no longer seen as an embarrassment or failure; these days it is regarded more as a necessary tool. Any executor should realize that a shift in attitude such as this could well affect how the beneficiaries of an estate will react to the executor’s behaviour.

      By now you may have read the will that appoints you and have a general idea of what you need to do as executor. Or, if there is no will, you are the person who is going to step forward to be appointed by the court as the estate administrator. You are considering your options, doing some research, and perhaps hiring a lawyer to help you. You may already have heard or read that as an executor or administrator, you may be personally liable for mistakes you make while administering an estate: Any financial loss to the estate by the executor may result in the executor repaying that loss out of his or her own pocket.

      One of the most complicating factors in any estate is that the people involved are likely emotionally volatile. Everyone, most of the time including the executor, has just lost someone dear to them and has been thrown into an unwanted situation. Family members are grieving and emotions are easily triggered. The executor ends up being blamed for everything that happens, even when that is completely unfair. This makes an already intimidating job even more challenging for an executor.

      It can be pretty difficult under these conditions to carry out your duties as executor in a way that pleases everyone. However, this does not mean that you are doomed to endure months of harassment at the hands of the beneficiaries, or to end up in a lawsuit. It does not have to be that way. There are several steps that you can take to ensure that you do not regret taking on the executor’s role or becoming the most hated person in the family.

      This book looks at the ways that you, as an executor or a court-appointed estate administrator, may conduct yourself in a way that will not result in you becoming personally liable for your actions when looking after an estate.

      We will also look at several of the ways that executors and administrators tend to get into trouble, with explanations of exactly what can go wrong. We will then discuss ways to avoid those particular minefields. This book contains information, examples, tips, and ideas that executors can use. The last chapter of the book contains some additional liability-reduction tips that are wonderfully effective, but so little- known and so underused they could almost be considered secrets.

      Many of the problems and struggles encountered by executors during the estate administration are with the beneficiaries of the estate. You will notice as you read this book that the beneficiaries loom large in the majority of the issues raised. However, this does not mean that conflict with the beneficiaries is the only source of executor liability. In this book we will look at how co-executors may cause liability for each other. We will also touch on how an executor can become liable to third parties.

      In this book, the word “executor” will mean either an executor named in a will, or a court-appointed administrator. In almost every respect, these jobs are the same once they are underway. However, administrators can incur liability in additional ways that executors cannot. Chapter 15 is dedicated to court-appointed administrators to cover a few issues that relate strictly to them, and not to executors named in wills.

      What you will gain from using this book:

      • You will gain knowledge of the most common mistakes executors and administrators make without realizing they are causing a problem. You will be able to head off problems before they start by being aware of the issues that are likely to arise and how your decisions and actions will either aggravate them or prevent them.

      • You will gain an understanding of the various ways in which the courts deal with executors who break the rules intentionally, or who accidentally make mistakes. You will realize the importance of carrying out your executor’s duties to the best of your ability by comprehending how seriously the legal system will consider any breach.

      • You will gain practical ideas and information about how to avoid conflict and errors when working as an executor. This book will go beyond telling you how not to do things; it will provide information about how to proceed the right way.

      • You will gain knowledge of the laws and legal processes with which an executor must deal. This book will help you focus on the areas that most need your attention at a time when you may feel overwhelmed with new information and responsibilities.

      • You will gain the confidence you need to deal with an estate effectively and to manage the expectations of the beneficiaries. You will know that the beneficiaries have confidence in your abilities because you are showing them confidence, compassion, and leadership.

      • You will know how to protect yourself from personal liability when acting as an executor. You probably agreed to act as executor because you felt it is your duty to do so. This book will help you carry out that duty without regretting your decisions.

      Because this book is about liability, it must of course focus on financial losses that you as an executor might cause to an estate. However, there is another way in which you and the beneficiaries may well lose if you cannot properly discharge your duties as an executor: the emotional cost of family disharmony.

      The number of families adversely affected by the fraudulent, negligent, or arrogant behaviour of an executor is simply staggering. The majority of families end up in a dispute of some sort during an estate administration. Some break up completely and are never mended. Often, this is the direct result of the actions of the executor.

      While this kind of

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