Changing the executor of your will

I had three similar inquiries this past week.

Each couple made wills when their children were young. In the horrible event of them both dying before their children grew up, they named a responsible adult in their lives (a sibling or parent) as executor and they named guardians for their children. Their wills had trust provisions ensuring their children’s inheritance would be managed until some appropriate age, typically 25.

Their children are now adults, with children of their own and they now want one (or more) of their children to be executor once the second of them passes away, and they wonder about the trust and guardianship provisions that are no longer applicable.

Do they need to incur the expense of new wills?

Before I answer that, how about high fives to each of them. It is excellent having an estate plan in place when you have minor children. I gave a couple reasons in my July 14 column, but perhaps I should dedicate a column solely to that issue.

It is also good they are consulting a lawyer to review their estate plan. You can read my advice about reviewing your will in my May 5 column. (I would have recommended a review more often than 20 years but better late than never.)

First, I’ll address the inapplicable trust and guardianship provisions.

They’re nothing to worry about. They have become a bunch of irrelevant words that won’t get in the way. There’s no need for a new will to remove them.

The executor provision is more interesting.

One way to deal with it is to consider asking the person you have named as executor to not take on the role. In that circumstance, Section 131 of the Wills, Estates and Succession Act kicks in. (https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01#section131).

It says (and I’m paraphrasing) if you die with a will and your named executor renounces executorship or is unable or unwilling to fill that role, the court can appoint someone else to fill that role.

It gives a list of priorities. At the top of the list is a beneficiary who has the consent of the other beneficiaries. Next is a person nominated by a beneficiary, with the consent of the beneficiaries.

Let’s consider how that would play out.

The second of you and your spouse dies. Your sister is named executrix but has agreed not to take on the role. Your children can decide that one or more of them will administer the estate, or they could agree to appoint someone else.

You could be involved in making those decisions now so your children have clarity. As long as everyone agrees, any added expense in the administration of your estate should be minimal.

If you prefer to eliminate uncertainty and have the executor provision in your will properly dealt with, consider making the changes by way of a “codicil”. Don’t let that word scare you. It is simply a document that refers to your will and sets out how it is changed. It doesn’t even have to be called a codicil.

I’ve written about how to do that without the assistance of a lawyer in previous columns, published April 21 and 28.

There might be important reasons, other than executor designation and expired guardianship and trust provisions, to have your will redone. Please ensure you periodically review your will with a lawyer as I’ve recommended in the column I referenced.

If these are the only issues to be addressed, maybe I’ve saved you a few bucks. If you have difficulty finding any of the columns I’ve referenced online, e-mail me at [email protected] and I’ll help you.

If you have any end-of-life related column topics you would like me to write about, please let me know.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.