When someone who asks you to be their personal representative, executor or estate trustee passes away, Axess Law’s Wills and estates lawyers can help you figure out your duties and meet your obligations.
Usually estate trustees, as they are called in Ontario, are close to the deceased’s family or listed on financial documents such as bank accounts or investments and are notified of a death. But you may also find out through online obituaries or funeral notices. You have an “executor’s year” from the date of death to distribute an Ontario estate or, with court permission, longer if it is complex. We can advise you what to do if you need more time to administer an Ontario estate.
Who Can Be Estate Trustee
You must live in Ontario to be appointed estate trustee and can step down if you change your mind. When you’re asked to be estate trustee, you are assuming legal obligations to manage the deceased’s estates in a prudent and timely way. You can be liable or forced to resign if beneficiaries or heirs believe you had a conflict of interest, mismanaged assets or acted too slowly to distribute the estate. Axess Law can give you legal advice on estate trustee responsibilities before you agree to be executor.
How to Apply for Certificate of Appointment of Estate Trustee
Axess Law’s Wills and estate lawyers make it easier for you to fulfill your duties as estate trustee. We file a form 74.13 with Ontario probate court to get a certificate of appointment of estate trustee with a will (formerly called letters probate). If they died intestate, we file form 74.14 application for a certificate of appointment of estate trustee without a will (formerly letters of administration).
A certificate gives you legal authority to act on the deceased’s behalf and can take several months to obtain. Your responsibilities include:
- organizing funeral services
- collecting assets by dealing with banks or financial institutions
- notifying and paying creditors, including cancelling credit cards
- filing final income taxes and paying property taxes
- distributing gifts to beneficiaries (heirs)
- and passing the accounts by providing a record of your actions to the court.
Managing Small Estates
Some estates are simple to administer and may not require probating. Estate administration fees (formerly probate fees) can be a burden for small estates. If the deceased had very few assets or left assets such as life insurance policies or investments directly to named beneficiaries, probating the estate by going to court may not be necessary. Survivorship rights give a spouse who is joint tenant on property titles the right to be sole owner of matrimonial homes just by amending property titles. Ask us if probate is legally required if an estate is worth under $50,000.
Dying Intestate (Without a Will)
Courts can appoint family members or others with ties to the deceased to execute an estate if they died intestate without a Will. A government administrator will execute the estate if there is no one else available. Estates without Wills are distributed according to rules government makes.
Documents We Need
Bring these documents with you when you meet with Axess Law’s Wills and estate lawyers about applying to probate court as estate trustee:
- the original Will and any revisions, called codicils
- proof of death, such as a death certificate from the funeral home or coroner
- and list of the deceased’s assets and estimated values.
You can revise the asset list later if other real property or personal possessions are located. We draft an affidavit of execution of will and file the application to probate court to appoint you as estate trustee. We also advise you how to proceed if others, such as next of kin, also apply.
Paying Estate Administration Fees
Estate administration tax is paid to probate court on the estimated estate value before assets are distributed to beneficiaries or we can ask to defer taxes until all assets are located.
- No tax is due on estates of $50,000 or less after January 1, 2020.
- $15 is due for each $1,000 or less for estates valued at over $50,000.
Paying estate administration tax before remaining assets are distributed ensures the estate has enough resources to cover all expenses.
What Happens if There are Multiple Estate Trustees
You may be sole estate trustee or be tasked with only part of the duties of being estate trustee. When there are multiple estate trustees, you can agree (if the Will maker hasn’t decided for you) how to split up responsibilities. Your duties go quicker and if a trustee feels they are unable to devote the required time or energy, successor trustees can often take over. Axess Law files court applications to remove or replace estate trustees if needed.
Hiring Professional Advice
Estate administration can be difficult and time consuming. You can hire legal, financial or appraisal advisors to assist in valuing estate assets, unwinding financial accounts or managing conflicts with beneficiaries. Professional fees are covered by the estate, unless you spend estate finances unwisely, which could make you personally financially liable. Axess Law offers legal advice to new estate trustees on avoiding conflicts of interest and passing accounts to probate court.
Estate beneficiaries are often named in Wills. But if that information is missing or incomplete, banks, financial advisors and next-of-kin can usually help you find heirs named in a personal Will. Placing a legal death notice online or in local papers or hiring a private investigator can also assist you to find beneficiaries. Axess Law has Ontario lawyers near you who can apply to the court for declarations for beneficiaries who have died or are absentee.
Dealing With Will Challenges
Beneficiaries who are unhappy with bequests in a Will or how you manage the estate can ask for courts to intervene. Coercion, undue influence or fraud that occurred while a Will was being made can also be grounds to overturn a Will in Ontario. The estate covers legal expenses if court decisions are in your favour, but you can be personally financially liable if you are at fault. Axess Law recommends buying executor insurance for personal liabilities.
Declaring Estates Insolvent or Bankrupt
Estates that lack resources to cover debts or disburse bequests can be declared insolvent or you can file for bankruptcy on the deceased’s behalf. You must pass the accounts of the deceased’s assets to the court before asking to be removed from managing an insolvent or bankrupt estate.
Convenient Video or In Person Appointments
Axess Law Wills and estate lawyers arrange virtual video calls anywhere in Ontario or can meet with you in person at our Greater Toronto Area law offices to advise you on estate trustee duties. We have experienced Wills and estate lawyers near you. Call or use our online booking form to make an appointment.