Many people are familiar with the concept of being named the Estate Trustee (formerly executor) of an Estate, but few are aware of the various statutory and common law obligations that come along with being named an Estate Trustee. One of the fundamental obligations of an Estate Trustee is to protect the assets of the deceased’s Estate. We recommend that an Estate Trustee or Personal Representative consult with a legal professional and retain a solicitor to advise in the administration of the estate before proceeding, however the following may be helpful as a general point of reference:
Locate the will, confirm or determine the executor, and review instructions.
The Will may be located among the individual’s personal belongings at home, with a trusted family member, at a law office, or elsewhere. The Will often contains instructions regarding burial and funeral arrangements. Accordingly, locating the individual’s Will as soon as possible is important. The County of Carleton Law Association (CCLA) operates a Will check service in which lawyers can deposit the location information of Wills they create for their clients. The CCLA Will check service is a useful tool for Estate Trustees when determining where exactly the Will is stored, if it’s located a law office in the East Region.
Funeral arrangements and disposition of remains.
An Estate Trustee has the authority to make full and final decisions with respect to funeral arrangements and remains, however an Estate Trustee should generally refrain from making decisions contrary to the wished expressed by the deceased. The Estate Trustee may, but is not obliged to, request family members’ input.
Obtain multiple original copies of the proof-of-death certificate.
A proof-of death certificate will typically be required by the deceased’s banks, insurance companies, investment firms and other institutions in order to administer the estate. Obtaining multiple original, notarized or certified true copies will help avoid delays or inconvenience.
Arrange for the initial meeting with beneficiaries.
A meeting with beneficiaries can help to manage expectations and avoid misunderstandings. Creating clear lines of communication with beneficiaries can also mitigate the risk of conflict or personal liability for the Estate Trustee.
Ensure the family’s immediate financial needs can be met.
Family members of the deceased may have urgent financial needs. An Estate Trustee should be careful not to distribute funds from the estate prematurely as this may expose the executor to personal liability to creditors or the Canada Revenue Agency (CRA).
Review any marriage contracts, family law issues or dependant relief issues.
If the deceased was married, previously married and divorced, or if he or she supported any dependants, this may create an obligation on the estate to provide support to the surviving spouse or dependant.
Probate the will and pay probate fees if required.
Probating a Will involves recognition by the court that the Will is indeed the Last Will and Testament of the deceased person. A probated Will also confirms the executor’s authority to carry out the terms of the will. In all provinces except Quebec, when an Estate Trustee applies to the court for probate, a tax must be paid to the provincial government. The tax, which in Ontario is referred to as the “Estate Administration Tax” is based on the value of the estate assets.
