The death of a friend or a family member is often an emotional and difficult time. Adding to the emotional turmoil may be your appointment under their Will to the role of Estate Trustee. An estate trustee (or executor) is the person or persons who are named in the Will to take the role of handling the personal affairs and financial interests of the beneficiaries of the estate. For example, you may be appointed estate trustee for your spouse, a parent, or a sibling. An Estate Trustee is a fiduciary and must act in the best interests of the estate with honesty and loyalty.
As an Estate Trustee, you are the person primarily responsible for the administration of the estate. This may include the following:
- Making funeral and cremation arrangements
- Locating and notifying beneficiaries regarding their interest in the estate
- Securing and preserving the assets of the state
- Locating and paying the creditors of the estate
- Notifying Canada Revenue Agency, OHIP, any pension providers, banking institutions, mortgage holders, etc.
Once you have located the assets, outstanding debts and named beneficiaries, you now have a duty to pay the outstanding debts, sell and collect the assets (including real property like a home or cottage), and maintain thorough accounting records of each and every transaction and all assets and debts of the estate.
Depending on the steps to be taken, a filing of an Application for Certificate of Appointment in the jurisdiction of the deceased person may be required. It is not usually necessary where most of the estate’s property is passing to a spouse. However, it is required in many other circumstances. This is often referred to as Probate or Probating the Will. If this is necessary probate fees will be payable at filing. More information is available here: https://www.attorneygeneral.jus.gov.on.ca/english/estates/how_to_apply_for_probate.php
You may also want to consider the services of an Estate Lawyer. An Estate Lawyer will often act on behalf of the Estate Trustee to advise on the administration of the estate, prepare the court application for a Certificate of Appointment, and communicate with various financial institutions including negotiating and/or payment of creditors, preparing estate accounting and communicating with beneficiaries.
Not every estate is simple, and in some circumstances where beneficiaries are not happy with the Will or their expected share of the estate, or in other circumstances a family member may have been left out of the Will altogether, this may lead to litigation and the Estate Trustee may end up defending a court action on behalf of the estate. The Estate Trustee should seek legal advice if these issues arise and be prepared to address these concerns immediately.
There may also be circumstances in which your family member has died without a Will (i.e., they died intestate), which may still require administration of the estate which is done in accordance with Ontario legislation. Intestate estates are for another blog on another day.
We regularly act for Estate Trustees and beneficiaries. If you or a family member are in need of an Estate Lawyer or Estate Litigation Lawyer contact Chapman Law.