Making a will: Choosing your executor

What are the duties of an executor?

​An executor carries out the terms of your Will and administers your estate. The executor is responsible to collect assets, satisfy estate debts, file income tax returns and pay taxes owing, pay legacies, carrying out bequests of property such as real estate and personal effects, and finally distributing the remainder of your estate to those named under your Will.

The difference between an executor and a trustee.

​An executor settles the estate whereas a trustee is involved only if there are continuing trusts under the Will (as opposed to an outright distribution). The trustee must manage any trusts in the Will until they terminate in accordance with the terms provided therein. A trustee looks after such things as management of your investments, income and capital distributions and tax compliance.

​Usually the same person(s) act as both executor and trustee.

​When choosing your executor, bear in mind that your Will only comes into effect on your passing. During your lifetime, your Will may be amended to reflect your changing situation.

Number of executors

​The number of executors often depends on who has a financial interest in your estate. You may only need to appoint one executor if that person is your sole beneficiary – and if he/she is able to carry out the role. If there are many beneficiaries, having more than one executor is usually advisable for financial accountability. Also, having at least two executors ensures that there is continuity if one dies or is not able to act.

​If more than one executor is appointed, they must unanimously agree on any decisions. To avoid deadlock, your Will could well include a clause to allow for majority rule. This provision can also include a requirement for one or more named persons to be in the majority thus giving him or her a veto.

​Your Will should usually also provide a mechanism to name replacement executors to ensure there is always a sufficient number. This can be done by giving a specific person the power to appoint additional executors.

Compensation

​The law of each province allows for executors to claim compensation, but if the amount is not fixed in the Will it is subject to court discretion. This can result in disputes. Consider, therefore, whether there should be express provisions in your Will to deal with the amount of compensation, if any.

Caution

​Issues arise under our tax rules if an executor is not a Canadian resident. One possible problem is that the tax residence of an estate is considered to be where its “mind and management’ is located, which may give rise to a tax problem. As well, if an executor is not a Canadian resident, a bond or other security may have to be posted to protect the beneficiaries. This can, in some cases, be reduced or dispensed with by application to the court which, of course, increases costs.

Family executors

​In appointing their children to be executors, it is often assumed that siblings will all work together. Sometimes power dynamics can change after parents die and arguments can arise among family members. Having an executor who is not a family member could be a solution.

​Choosing your executors requires a careful consideration of all these factors.

© The foregoing provides only an overview and does not constitute legal advice. You are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained in the context of your own particular circumstances.

Brigitte DioGuardi

B.A., LL.B

Brigitte obtained her Law Degree from the University of Sheffield in the United Kingdom. Upon her return, she qualified for the Bar and was called to the Law Society of Ontario (formerly the Law Society of Upper Canada) in 2002. She was also a member of the Bar of British Columbia and headed up the Vancouver office of DioGuardi Tax Law.  Fluently bilingual in English and French, Brigitte has broad experience in the areas of:

  • Tax Law, Civil Assessment Negotiation and Litigation, Criminal Prosecution Defense, Unpayable Tax Debt Solutions, Audits, Tax Amnesty.
  • Corporate and Commercial Law
  • Real Estate
  • Wills and Estates
  • Insolvency and Bankruptcy

Tax Law

​If you are one of thousands of Canadians who have failed to file taxes for several years the answer maybe to seek amnesty. Be aware that failure to file for more than one year if you owe taxes is a criminal offence and you may be criminally prosecuted.

The CRA Voluntary Disclosure Program allows taxpayers to come forward and obtain immunity from prosecution and most civil penalties, provided certain conditions are met.

We specialize in lawyer-negotiated tax debt settlements and tax amnesties with federal and provincial tax authorities, offering taxpayers a much-needed resource for the resolution of situations that all too often put personal and financial lives at risk. We stand as your protector, defender, and advocate to ensure that you the taxpayer, receive the best treatment possible. 

We offer solutions for tax problems such as:

  • Unreported income
  • Unfiled tax returns
  • Payment arrangements
  • Unpayable tax debt
  • Tax dispute litigation
  • Criminal tax defense

Wills, Estates & Trusts

​We offer the following will, estate and trust services for individuals and business-owners:

  • Wills
  • Preparation of trust agreements
  • Powers of attorney
  • Estate administration
  • Probate
  • Representation in estate driven litigation
  • We currently offer a special time limited package for one will and two powers of attorney (property and personal care) for $295 plus HST

Real Estate

We can assist you with all your real estate needs including:

  • Newly constructed/Resale
  • Purchases and Sales
  • Title transfers
  • Leases
  • Private mortgages 
  • Refinancing 
  • Condominiums
  • Vacant land

Tax Debt Relief

With the coronavirus pandemic leaving many in a precarious and dire financial situation, it is essential that you protect yourself financially. If you have a large, unpayable tax bill, we can help. We act in the best interest of the tax debtor. Unlike us, insolvency trustees represent not only you but your creditors (ie- the tax collector). The more tax you pay, the more trustees earn. Our goal through leveraged negotiations, is to reduce your tax debt.

Please consult our blog post Protecting Your Assets from Creditors for more information.

Business & Tax Planning

If you do not already have a certified financial planner, we can provide one or more highly qualified people who can work closely with us to assist you with such matters as:

  • Resident and non-resident corporate restructuring
  • Optimum use of holding corporations
  • Continuity and succession planning
  • Tax-free transfers
  • Losses and ABIL planning
  • Making interest tax deductible
  • Small business planning

Corporate & Commercial Law

We have represented business clients for the last 50 plus years and have supported their legal requirements on an on-going basis by offering the following services:

  • Incorporations and corporate governance
  • Corporate reorganizations and transactions for the directors and shareholders
  • Negotiation and drafting of agreements, professional corporations, minute book maintenance

Brigitte DioGuardi

B.A., LL.B

Brigitte obtained her Law Degree from the University of Sheffield in the United Kingdom. Upon her return, she qualified for the Bar and was called to the Law Society of Ontario (formerly the Law Society of Upper Canada) in 2002. She was also a member of the Bar of British Columbia and headed up the Vancouver office of DioGuardi Tax Law.  Fluently bilingual in English and French, Brigitte has broad experience in the areas of:

  • Tax Law, Civil Assessment Negotiation and Litigation, Criminal Prosecution Defense, Unpayable Tax Debt Solutions, Audits, Tax Amnesty.
  • Corporate and Commercial Law
  • Real Estate
  • Wills and Estates
  • Insolvency and Bankruptcy

Joyce Bruno

EXECUTIVE LEGAL ASSISTANT

Joyce Bruno has worked as executive legal assistant to Paul Dioguardi for 35 years and continues to offer her expertise and experience to the Dioguardi Law firm. Joyce’s role has evolved over the years and has acquired and developed many skills. She is an invaluable asset in case management and ensures the smooth running of our office.

Paul DioGuardi

B.A., LL.B, Queen’s Counsel

Paul obtained his Law Degree from Queen’s University in 1964.  He is a member of the Bars of Ontario, British Columbia and the Turks and Caicos Islands, a British tax free territory in the West Indies. He has over 50 years of experience and was trained at the Ottawa head offices of Revenue Canada and the Tax Litigation Section at the Department of Justice. Paul has had and continues with an extensive career in various areas of law such as:

  • Tax Law, Civil Assessment Negotiation and Litigation, Criminal Prosecution Defense, Unpayable Tax Debt Solutions, Audits, Tax Amnesty.
  • Corporate and Commercial Law
  • Real Estate
  • Wills and Estates
  • Insolvency and Bankruptcy