Executors & Power of Attorneys

We’ve outlined a few common and frequently asked questions to help paint a clearer picture of the role of an Executor.

You may find yourself working through RightSizing decisions on behalf of someone else. If you have been appointed as an Executor or Power of Attorney it is important to understand the associated implications. We can help connect you with relevant professionals to meet your needs. For now, here is a brief overview.

The below questions were kindly answered by lawyers Anne Hudson and Michael Haddad of Haddad Hudson Professional Corporation, specializing in Real Estate and Estate and Trusts. Anne and Michael can be reached at 416-926-8151.

  • An executor is appointed in a person’s will to administer their estate and distribute their property after death. When a person dies without a will they are said to have died intestate, which means that legislation and the courts, rather than a will, determines how the deceased person’s property is to be distributed. Someone will also be appointed by court application to administer the deceased’s estate, in accordance with the relevant legislation.

  • The executor is primarily responsible for the administration of the deceased’s estate and the transfer of estate proceeds to the beneficiaries pursuant to the will. It is recommended that executors obtain the advice of a lawyer and an accountant to assist in executing their duties.

  • In order to administer the assets of a deceased person, including the sale of real estate, it is generally necessary to obtain a Certificate of Appointment of Estate Trustee with a Will. This is obtained by a court application and verifies the validity of the will and confirms the authority of the executor to deal with the deceased’s assets. Historically, this court process was called “probating the will” or obtaining “probate” and many people continue to use this terminology. It is possible in some circumstances for real estate to be sold or transferred without probate. A lawyer can advise as to whether a particular property can be sold or transferred without obtaining probate. If probate is required, real estate cannot be sold until it has been obtained from the relevant court office. Your realtor and lawyer can advise the executor on when the sale of real estate can proceed.

  • Prior to selling the real estate held by the deceased, there will be additional duties of the executor, including preparing an inventory of household contents, making individual gifts of personal property, and storing or disposing of household contents as set out in the will.

  • A Power of Attorney for Property is a legal document in which an individual (the “grantor”) grants the authority to one or more attorneys to act on their behalf with respect to their property, which may include real estate and other financial assets. If two or more attorneys are appointed, they may be required to make decisions jointly, or be able to act separately, depending on how the power of attorney document is worded. A Power of Attorney is only valid while the grantor is alive.

  • A Power of Attorney for Property can be used for a limited purpose, for example, to buy or sell a specific property because the grantor is planning to be out of town. A Power of Attorney can also be used where the grantor is unable to manage his or her financial affairs, due to physical or mental incapacity, and it is in the best interest of the grantor that their property be sold. It is important that in either case that the Power of Attorney for Property has been properly drafted, executed and witnessed, and is appropriate to the circumstances. If you are acting as an attorney in a real estate transaction, it is important that you be able to produce an original copy of the Power of Attorney for Property.

  • In appointing an attorney to manage your property and financial affairs, it is important that the named attorney or attorneys be capable and trustworthy.

  • An attorney has the authority to deal with the donor’s property in the same way as the grantor would, subject to any conditions or restrictions set out in the Power of Attorney document. An attorney can be anyone who is over the age of 18 and has mental capacity to act.

If you are acting as an Executor or Power of Attorney for the sale of a property and require a Real Estate Sales Representative, please contact us directly. We can oversee all aspects of the sales process: 416-735-4665 or info@RightSizing.ca