From the desk of Tim O’Hara:
You are experiencing an incredibly emotional period in time, but if the responsibility falls to you, you want to maintain control of your mother’s estate and if you accept that responsibility you have to do all the practical matters necessary. Because it is such an emotional time, there is some element of avoiding the emotions. There is some element of wanting to delegate any of the practical responsibilities. But if it falls on you, your mother wanted you to do it and we want her memory to be honoured and that all matters are done right and with dignity.
The executor is in charge of the estate. If you are the executor named in your mothers will, it is your responsibility to make the funeral and burial arrangements however you believe she would want it done or whatever she instructed you to do. It would be useful to you to have a copy of the will to illustrate the funeral home, church, bank or whatever agencies you are dealing with, to prove that you are the one responsible to make the decisions. If there is no will, then the responsibility in the first instance falls to the closest living relative. Generally this would be the spouse first, a child second, a parent third and a sibling fourth. If you are one of the children and there is no will, all of you, the children of your mother should be making all of the decisions communally.
Ensure that there are not competing parties making the arrangements. Ensure that you in your very emotional state are not taken advantage of, either by other potential beneficiaries or the institutions you have to deal with. You will be attending to all the practical matters for cremation, burial or service, whichever you decide should be done.
If you are not the executor, facilitate what the executor wants. Do not compete with the executor. Do not inter-meddle. The executor has the final say and any action you take without the consent of the executor may cause extreme emotional response because you are in an extremely emotional situation.
In the long term, when the first of a couple dies, it is often not necessary to get probate. However, when the last of a couple dies, it is almost always necessary to get probate. Probate is the court guaranteeing to third parties that the will is valid and that it is the last will executed and that the person they are dealing with as executor is the correct person. Once probate is granted, everybody can deal with the executor without fear of liability. Probate is a time consuming technical process which will be dealt with after the initial administration. You need only ensure that the assets are not harmed or removed and that you are aware of where the important papers are kept and that you retain access to them.
The executor is still the executor, even if probate is not necessary.
For summary advice of any matter that may arise, you may contact Tim, Louise or Emma at our offices. It is with great satisfaction that we would help you in these important circumstances.