For Estate Trustees

Estate Trustee With or Without a Will

Estate administration is the process required to settle the assets/affairs of a deceased person. If the deceased had a valid Will, the Will would normally name the person appointed by the deceased to administer and distribute his/her estate. This person is called an estate trustee (formerly called an executor or executrix). If there is no Will, Ontario law governs the appointment of the estate trustee and the distribution of the proceeds of an estate. An estate trustee stands in a fiduciary (i.e. trust) position and, as such, is required to show the utmost good faith in dealing with the estate, beneficiaries and others.

An estate trustee gets his or her authority to administer the estate from the Will. Therefore, an estate trustee need not necessarily apply to the court to obtain the court’s authority to act in the estate’s name. However, when the value of the assets of the estate is high, or for certain types of assets, the estate trustee will have little choice but to apply to the Ontario Superior Court of Justice to obtain a Certificate of Appointment of Estate Trustee with a Will (formerly known as Letters Probate) or a Certificate of Appointment of Estate Trustee without a Will (formerly known as Letters of Administration), (“Certificate”).

In practice, most financial institutions and insurance companies now require a Certificate before liquidating any of the deceased’s assets. The Certificate demonstrates to the world that the Will has been duly proven and registered with the court and that the estate trustee has authority to act on behalf of the estate. When applying for a Certificate, an estate administration tax must be paid to the court.

Steps an Estate Trustee Should Take

An estate trustee must take steps as soon as is possible following the death of the person whose estate is the subject of the administration to:

  1. Make proper funeral and burial arrangements;
  2. Determine that the Will appointing the trustee is the last Will of the deceased;
  3. Determine the names and addresses of those beneficially entitled in the estate and notifying them of their interest;
  4. Determine the full nature and value of the assets of the deceased and compiling a list of them;
  5. Employ a solicitor for advice with respect to the administration of the estate and to apply to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee, if the nature of the assets so requires;
  6. Supply the solicitor with the information needed to make the application, including the list of assets and values, names and addresses of those beneficially entitled, and names and addresses of the witnesses to the Will, amongst other things;
  7. Determine what debts were owed at the time of death and arranging for payment;
  8. Contest and/or settle any debts, the validity of which is in doubt;
  9. Look after the deceased’s tax returns and remit all taxes owing; and
  10. Account to the beneficiaries, and the Court, if lawfully required to do so, for all actions in the administration of the estate.

Fleming Estate Law can assist you with preparing and applying for a Certificate of Appointment of Estate Trustee. We also provide solicitors, estate trustees and institutional clients with litigation assistance when isolated or contested issues arise during an estate administration.

Estate Trustee During Litigation

Under Ontario’s Estates Act, the Court has the power to appoint an “estate trustee during litigation” (litigation trustee). It is not unusual for the court to appoint a litigation trustee during a will challenge or where litigation may affect the ultimate distribution of the estate. A litigation trustee has all of the rights and powers of an estate trustee other than the right to distribute the proceeds of the estate. A litigation trustee is subject to the immediate control and direction of the court and is entitled to such reasonable compensation as the court deems proper. A trust company or an individual may be appointed as a litigation trustee by the court. Fleming Estate Law routinely advises both institutional and individual litigation trustees.

To get the professional help you need as an estate trustee in Kingston, Eastern Ontario, and the surrounding areas, contact Fleming Estate Law today.