Role of the executor

There are many readers who have numerous questions as it relates to the roles and duties of the executor. The following are the primary roles of an executor and should be considered when one is being appointed.

An executor is the person named by the maker of a will (testator/testatrix) as the person who will carry out their wishes by winding up the estate.

A beneficiary is the person to whom a gift is given under the will.

The executor has a three-fold responsibility in winding up an estate (i) to collect the deceased's assets (ii) to pay the debts and (iii) to divide the estate among the beneficiaries.

In order to complete the winding up of the estate, the executor will usually retain the services of an attorney-at-law to apply to the court for a grant of probate (that is, a process which allows the court to rule that a will is legally valid).

As soon as the testator/testatrix dies, the executor 'steps into his/her shoes'. The executor is at liberty to seize and take in hand anything which belonged to the testator/testatrix, pay or compromise debts and commence proceedings in court (This also means that the executor can be sued).

In most cases, two executors are named in a will. There is no legal requirement for both to take steps to wind up the deceased person's estate. In fact, in many situations, only one executor will apply for a grant of probate, while reserving the right for the other to make a similar application if he/she wishes to do so. There are even times when an executor may refuse to act, and is perfectly within his right so to do.

If an executors fails, refuses or is unable to apply for a grant of probate, another person with an interest in the estate (such as a beneficiary) may make the application to prove the validity of the will, but such an application will be called an application for a grant of letters of administration with will annexed.

Where there is a grant of letters of administration with will annexed, the estate will be distributed in accordance with the provisions of the will.

Executors are often faced with very challenging decisions when carrying out their functions. For example, in many cases, there are insufficient funds to pay the debts of the estate, and the executor must impartially decide what assets need to be sold in order to pay those debts. Invariably, the asset which the executor is forced to sell was earmarked as a gift to beneficiaries.

The role of the executor is one that requires trust and confidence so the process of choosing an executor should be carefully undertaken.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.