Thinking about death and dying is distressing and unpleasant for many people. As such, it is not uncommon for individuals to delay or to refuse to make decisions about what will happen when they die. Unfortunately, absent major advances in cryonic preservation, the reality is that death for all people is a certainty. What is not certain is the "when." Therefore, to reduce the stress, the number of decisions and the amount of work for those you leave behind when you die, you should, at a minimum, take the time to make a valid Will and in that Will appoint someone to manage your affairs.
The person you appoint in your Will to manage your affairs after you die is called an estate trustee (or an executor). You can appoint more than one estate trustee to manage your affairs and an estate trustee can be an individual or it can be a corporate trustee such as a bank. If you die without leaving a Will or if you fail to appoint an estate trustee in your Will, the court will likely be required to appoint someone to act as the estate trustee of your estate.
As an estate trustee you will have several duties and obligations to fulfill with respect to the affairs of the deceased. After dealing with the funeral and burial arrangements, one of your first duties will be to search for the original Will. The Will is what will govern the administration and distribution of the deceased's estate. If there is no Will, the provincial rules governing intestate estates will apply. An estate lawyer at our Ottawa law firm can help you understand and navigate through the estate administration process.
What is a Certificate of Appointment of Estate Trustee?
A Certificate of Appointment of Estate Trustee with a Will (or a Certificate of Appointment of Estate Trustee without a Will) is issued by the court and signifies to those who have to deal with the estate trustee, such as banks, insurers and creditors that the estate trustee has the authority to represent the estate, to distribute assets and to sign necessary documents, including tax returns and title documents. The court issues a Certificate of Appointment in a prescribed form. Financial institutions will not transfer assets without a Certificate of Appointment unless the total accounts held at the institution have a low balance and indemnities are obtained. Real property held by an estate also cannot change title without a Certificate of Appointment.
In order to obtain a Certificate of Appointment, an applicant must disclose to the court the value of the estate so that the estate administration tax can be determined. In Ontario, estate administration taxes (formerly called probate fees) are calculated as follows: $5 for each $1,000 of estate value up to $50,000 and $15 on each $1,000 of value thereafter. Unless a court orders otherwise, the estate administration taxes must be paid at the time the application for a Certificate of Appointment is submitted. Ontario's estate administration taxes are among the highest in Canada.
The Duties of an Estate Trustee
The law requires an estate trustee to act diligently and honestly and for the benefit of the beneficiaries. The standard of care imposed on the estate trustee is high and the estate trustee can be personally liable if he breaches one or more of his fiduciary duties.
Some of the specific duties and obligations of an estate trustee are to:
- Arrange for the funeral and burial of the deceased;
- Locate the original Will and any codicils (amendments);
- Read and interpret the original Will and any codicils;
- Apply for a Certificate of Appointment of Estate Trustee (if required);
- Locate, preserve and make an inventory of all important documents, property and valuables;
- List the contents of any safety deposit boxes;
- Value all estate assets and debts;
- Notify the deceased's financial institutions of the death;
- Inform the Ministry of Transportation, the Ontario Health Insurance Plan, the Canada Pension Plan, etc., as applicable, of the death;
- Advertise for creditors, if necessary;
- Inform the beneficiaries of their entitlement and keep them apprised of how the estate administration is progressing;
- Ensure that real estate, vehicles and other pertinent assets of the estate continue to be insured;
- Obtain a title search of any real property;
- Realize the estate assets and invest them prudently;
- Apply to Canada Pension Plan for the death benefit (maximum $2500), if applicable;
- File appropriate tax returns for the deceased and the estate;
- Pay or settle all taxes, debts and other liabilities of the deceased from the estate assets, cancel credit cards, cancel subscriptions, close accounts and obtain a tax clearance certificate from Canada Revenue Agency;
- Collect insurance proceeds;
- Arrange for the sale of real estate, if necessary;
- Keep a detailed account of the assets, receipts, disbursements and investments of the estate;
- Establish trusts as per the instructions in Will;
- Prepare and submit to residual beneficiaries a detailed accounting of estate funds;
- Prepare and obtain releases from beneficiaries;
- Pay legacies and other bequests under Will; and
- Distribute the remaining assets of the estate in accordance with the provisions of the Will or the laws of intestacy if there was no valid Will, after releases have been signed.
Failure to perform any of these duties can result in the estate trustee being personally liable. It is important to note that if there is more than one estate trustee, all the estate trustees are responsible for managing the affairs of the estate. Decisions must be unanimous unless the Will provides for decisions to be made by a majority of the estate trustees.
How an Estate Lawyer Can Help You
As an estate trustee in the Ottawa area, you can obtain guidance and assistance from an experienced estate lawyer at our firm. Ways in which a lawyer may assist you in your role as estate trustee include:
- Providing an opinion about the interpretation of the Will;
- Preparing documentation on your behalf to notify banks and other financial institutions of the testator's death and obtaining values of the estate assets as of the date of death;
- Preparing the application for your Certificate of Appointment of Estate Trustee;
- Providing general legal advice about the estate, including in your duties and obligations as an estate trustee;
- Preparing survivorship applications for property held in joint tenancy; and
- Preparing and obtaining releases and receipts from beneficiaries before a partial or final distribution of estate assets is made.
Contact Merovitz Potechin LLP to Help You With Your Role as Estate Trustee
At our Ottawa law firm, an estate lawyer will assist and advise you on the various aspects and issues that arise during the estate administration process. We can also provide assistance when unexpected problems arise, such as if a beneficiary contests the Will or legally challenges you as estate trustee. Contact our estate lawyers in Ottawa at 613-563-7544.