It’s not uncommon for someone to say that they’re the “Executor” of a loved one’s Estate. You may have also heard of money being held “in trust” by a “Trustee” on behalf of the minor beneficiaries of an Estate. If your Will was drafted by an Alberta Wills & Estates lawyer after 2012, it probably has the term “Personal Representative” in it somewhere. Or, you may have even heard the more archaic term “Executrix” used to describe a female Executor.
So what’s the difference between an Executor/Executrix, a Personal Representative and a Trustee? And why does the terminology need to be so confusing? We did a little digging into Alberta’s legal history, in hopes that you’ll come away from this article with a clearer picture of Estate law terminology.
All Roads Lead to Rome
Let’s start by going back in time. Wills, in the sense that we think of them today, originated in Ancient Greece, although examples of bequests and inheritances can be found even earlier in human history. While Wills didn’t originate in England, the term “Executor” finds its origins in the English legal system.
Because Canadian law is based on the English common-law system, the term “Executor” was inherited from England and formally used throughout Alberta until 2012, when it was replaced by the term “Personal Representative.”
Executor vs. Executrix
The term “Executor” comes from the Executor’s responsibility to “execute”, or carry out and follow through on, the wishes and intentions of the Will-maker. The feminine form of the word “Executor” is “Executrix”.
In common conversation, and even among many Wills & Estates lawyers, “Executor” is used informally to describe the person who carries out or fulfills the wishes of the Will-maker as outlined in the Will.
The term “Executrix” is nearly obsolete, but it is still found in Wills that were drafted prior to 2012. Additionally, the Land Titles Office uses the term on Certificates of Land Title when land is being held by a female Personal Representative on behalf of an Estate. Outside of some limited exceptions, however, the term “Executor” typically encompasses Estate representatives of all genders.
What’s a Personal Representative?
The Wills & Estates laws in Alberta were quite complex and cumbersome prior to 2012, with various pieces of outdated legislation governing each aspect of the Estate Planning and Estate administration processes. Thankfully, in 2012, Alberta lawmakers combined the various pieces of Wills and Estates legislation into two comprehensive acts: The Wills and Succession Act and the Estate Administration Act.
Each new Act replaces the terms “Executor” and “Executrix” with the term “Personal Representative.” The Personal Representative fulfills the same duties, has the same responsibilities and is the same person as the individual formerly described as an “Executor” or “Executrix”.
While “Executor” and “Personal Representative” are now used interchangeably, any Will drafted post-2012 should use the term “Personal Representative.” Similarly, other formal documentation in Alberta typically refers to someone who formerly would’ve been known as an “Executor” or an “Executrix” as a “Personal Representative”.
In summary, the terms “Personal Representative” and “Executor” or “Executrix” can be used interchangeably, but, in Alberta, “Personal Representative” is the legally correct title for an individual who executes or carries out a Will.
What’s a Trustee?
A Trustee is an individual, a group of individuals, or a corporate body who holds personal or real estate property, including money or other assets, “in trust” on behalf of the ultimate beneficial owner.
For example, a Trustee may hold and manage money for a minor beneficiary of an Estate—the Trustee is not entitled to use the money to benefit themselves, but rather they hold the money in trust for the ultimate benefit of the minor. Once the minor reaches a certain age, the Trustee transfers any remaining funds to the beneficial owner (the now-adult child), and the Trust is dissolved.
Trustee vs. Personal Representative
Trusts are used in various contexts throughout the Canadian legal system, however, in Wills & Estates law, the most relevant form of trust is a “testamentary trust”. A testamentary trust is a trust that is created by a Will.
When someone dies, the Personal Representative or Executor of the Estate also becomes a Trustee of the Estate property until it is fully distributed. In other words, the Personal Representative holds the Estate property for the benefit of the beneficiaries named in the Will. As such, the Personal Representative must act honestly and in good faith and keep careful records of their handling of Estate assets.
So, while not every Trustee is a Personal Representative when it comes to Wills & Estates law, a Personal Representative is always the Trustee of the Estate property until such time as it is distributed unless the Will stipulates otherwise.
We’re Happy to Answer Your Questions!
Regardless of whether you’re the Personal Representative of an Estate, the loved one or friend of a deceased individual, or are creating your own Estate plan, we’re happy to answer any questions that you may have. The experienced Wills and Estates lawyers at West Legal are currently booking face-to-face and telephone appointments and would be happy to consult with you.Contact a Calgary Estate Planning Lawyer