Executors and trustees must act unanimously unless the Will provides otherwise. If unanimity is required then, from a practical perspective, consideration should be given to the appropriate number of executors and/or trustees – too high a number should be avoided. If multiple executors and/or trustees are appointed, a testator can choose to specify in the Will that majority rules. As well, the testator may choose to state that a certain executor and/or trustee will carry a decision in the event of a tie. If only one person is appointed as executor and trustee then an alternate person should invariably be appointed to address a situation where the named person predeceases the testator or is unwilling or unable to act.
A person must have reached the age of majority (18 years old) in order to act an executor or trustee. That being said, a minor person can be appointed an executor and/or trustee in a Will upon attaining the age of majority provided that an adult person and/or a trust company is also appointed. The minor can be named to either act together with the other appointed executor(s) and/or trustee(s) or to replace him, her, or them. If, at the time of a testator’s death, a minor person is the sole appointed or remaining executor and/or trustee then the Estates Act provides that a Certificate of Appointment of Estate Trustee With a Will shall be granted to the guardian of the minor, or to such other person as the court deems fit, until the minor attains the age of majority.
With respect to where an executor and/or trustee resides, administering an estate and any related testamentary trusts can be time-consuming and multifaceted. There are significant practical challenges to effectively being able to carry out such offices from any meaningful distance, and testators should reflect on those challenges before appointing one or more executors and/or trustees who reside far away. In addition to the practical hurdles, pursuant to the Estates Act an executor may be required to post a bond as security if he or she resides outside of the Commonwealth (for example, in the United States).
Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.