Can my Lawyer Act as my Executor?

There are several important considerations that go into naming an Executor in your Will.

While a potential Executor’s occupation isn’t one of the most relevant considerations, some individuals’ professions give them more background knowledge and experience with the skills and characteristics required of an Executor.

It goes without saying that most practicing Alberta Wills & Estates lawyers have an informed understanding of the tasks and responsibilities of Executorship. For that reason, clients sometimes ask if they can name their Wills lawyer as an Executor in their Will.

This article addresses whether your lawyer can, by law, act as your Executor in Alberta, whether it makes sense for you to appoint your lawyer as your Executor, and whether the Wills & Estates lawyers at West Legal can act as Executors on behalf of their clients.

Is it Legal for my Lawyer to Act as my Executor in Alberta?

In many cases, it is legal for a lawyer to act as the Executor, or Personal Representative, of a former client’s Estate, even if the lawyer drafted the deceased’s Will. The Estate laws and trusteeship laws in Alberta, however, place restrictions on the fees a lawyer can charge for acting as an Estate’s Executor. The law also holds lawyers to a higher standard than other individuals who act as Executors.

According to Section 5(3) of the Estate Administration Act, a lawyer who also acts as an Executor has to exercise a greater degree of skill when acting in a professional capacity than does an Executor of another occupation. This increases the risk for lawyers who act as Executors.

Furthermore, lawyers who act as Executors cannot charge their usual fees for work that is non-professional in nature. Put differently, much of the work required of an Executor is not ‘legal work’ and does not require the specialized advice and services that lawyers offer. This distinction is sensible and protects Estate Executors from unscrupulous lawyers who may take advantage of their Executorship role and overcharge on fees.

Should My Lawyer Act as My Executor?

While there are exceptions to every rule, it’s not ideal to name your lawyer as your Will’s Executor, even if they’re willing to act on your behalf. There are a few reasons why.

Firstly, while your friends and family members may not have the legal expertise that your lawyer does, they may still have the characteristics required of an Executor. A suitable friend or family member typically has a far better understanding of you, your beneficiaries, your assets, and your liabilities, and is better situated to communicate with beneficiaries and family members than your lawyer is.

Secondly, it’s important to consider the cost. While, as discussed above, your lawyer can’t charge their typical hourly rate for non-legal Executor tasks, they can still charge an Executor’s fee, and that fee may be higher than what a friend or family member would charge. Sometimes, loved ones don’t wish to be compensated at all for acting as your Estate’s Executor.

Thirdly, because lawyers are held to a higher standard than other Executors, the risk of a legal claim against the Estate may actually increase. While it sounds counterintuitive, and while lawyers should have a greater understanding of the responsibilities of executorship, if your lawyer does act negligently while administering your Estate, a potential claimant may have a higher likelihood of success.

Lastly, most of the ‘big banks’ in Canada have trust services departments that will act as your Estate Executor in exchange for a fee. If you don’t have a suitable Executor in mind, a trust company may be the right choice for you.

It’s also worth keeping in mind that regardless of who you appoint as your Executor, they will likely seek out formal legal advice during the Estate Administration process. If a Grant of Probate or Administration is necessary, a Wills & Estates lawyer can prepare the Grant application on behalf of your Executor.

Does West Legal Act as an Executor on Behalf of Clients?

Unless it’s a family member or close friend, the Wills & Estates lawyers at West Legal generally don’t act as Executors on behalf of clients. However, we do offer the following legal services to guide and advise your Executor throughout the Estate Administration process:

• Advise Executors of their legal responsibilities to the Estate;
• Assist Executors in fulfilling their obligations to the Estate;
• Draft Probate Applications on behalf of Executors and submit them to the Surrogate Court;
• Communicate with Estate beneficiaries (where appropriate);
• Advise Executors regarding the sale and distribution of Estate assets;
• Publish notice to Estate creditors if appropriate;
• Send releases to beneficiaries to protect Executors from undue liability;
• Draft ‘proposed distribution’ tables to guide the Executor and inform beneficiaries; and
• Handle many other legal aspects of the Estate Administration process, including liaising with the Surrogate Court and Land Titles Office.

We’ll Help You Choose the Right Executor for your Estate

The Wills & Estates lawyers at West Legal offer free-of-charge Estate Planning consultations to potential clients. While we likely won’t agree to naming ourselves as your Executor, we’ll advise you of the important legal considerations that go into choosing the right Executor.

Alternatively, if you’re the Executor of an Estate, the competent and experienced Wills & Estates team at West Legal is here to guide you through the legal aspects of the Estate Administration process.

Contact a Calgary Wills & Estates Lawyer