by Jake Leveille, Associate Lawyer at Dentons LLP
When it comes to estate planning, the role of a personal representative is paramount. In Alberta, the term “personal representative” is used instead of “executor,” and this person serves as the cornerstone between the deceased’s wishes, as outlined in their will, and the distribution of their assets and settling of affairs.
While often overlooked or underestimated, the personal representative plays a crucial role in your estate plan. In this article, we will explore what a personal representative does, why they are essential, how to choose one and what duties they undertake.
What is a personal representative and why do you need one?
A personal representative is an individual appointed by the deceased, also known as the testator, to carry out the provisions of their will upon their death. Naming a personal representative in your will that you trust is vital for several reasons:
Ensuring your wishes are honoured: By appointing a personal representative, you can ensure that your assets are distributed according to your wishes,
as specified in your will. By choosing someone who understands your values and priorities, you can trust that they will act in your best interests and carry out your wishes with integrity and compassion.
Efficient administration: The administration of an estate can be complex and time-consuming, involving tasks such as preparing an inventory of assets, settling debts of the estate, and distributing assets to beneficiaries. With their organizational skills and attention to detail, a personal representative can navigate the intricacies of estate administration and minimize delays.
Minimizing family conflicts: By maintaining open lines of communication and addressing concerns promptly and transparently, a personal representative that you trust can help prevent misunderstandings amongst family members from escalating into conflicts.
What should you keep in mind when choosing a personal representative?
Trustworthiness: Your personal representative should be someone you trust implicitly to carry out your wishes and act in the best interests of your estate. In many cases, family members such as a spouse or adult child, as well as close friends, are named as personal representatives.
Organizational skills: Estate administration can be complex and time- consuming. A personal representative with strong organizational skills can navigate the process more efficiently.
Availability: Choose someone who has the time and availability to dedicate to the responsibilities of being your personal representative.
Financial literacy: Dealing with finances and legal matters is a significant aspect of the personal representative’s role. Consider selecting someone who is financially literate or has access to appropriate professional advice.
What are the duties of a personal representative?
Funeral: Making funeral and burial/ cremation arrangements and ensuring that any associated costs are promptly paid by the estate.
Asset and debt management: Identifying and safeguarding the deceased’s assets, including property, investments, and personal belongings. They will also need to investigate all debts and other possible claims against the estate, including from estranged or dissatisfied spouses, partners, and children.
Reporting: Personal representatives must report to the beneficiaries and keep them informed on a regular basis. They must maintain adequate and complete accounts, and respond promptly to inquiries from beneficiaries.
Probate: Determining if they need to apply for a Grant of Probate. This is a court application to formally ‘prove’ the will. Many financial institutions and the Land Titles Office require a Grant of Probate before they will allow the personal representative to access and administer the estate’s assets.
Distribution of assets: Distributing assets to beneficiaries as outlined in the will, following any legal requirements, and ensuring fairness among beneficiaries.
Legal compliance: Ensuring compliance with all legal requirements, including filing tax returns, and obtaining necessary court approvals.
The personal representative plays a vital role in the estate planning process, ensuring that your wishes are carried out and your estate is administered efficiently. Thoughtful estate planning is a gift that you can give your family, and choosing the right personal representative is an important part that requires careful consideration of various factors. By fulfilling their duties diligently, a personal representative can help ease the burden on grieving loved ones and ensure a smooth transition of assets to beneficiaries.
This article was written by Jake Leveille, an associate lawyer in the Trusts, Estates and Wealth Preservation group at Dentons Canada LLP. Jake’s practice focuses on trusts, estate planning, and estate administration for both simple and complex estates, and he has a passion for developing estate plans that match the needs of his clients and their families.
