Sherman Law LLP

 

 

 

Estate Administration

 

The administration of a loved one’s affairs after their death in accordance with their Will can be a complicated and overwhelming process. Many people have no training or experience in their role as an executor or estate trustee, and the variety of duties can be considerable. Others may find themselves unprepared for conflicts with heirs or other interested parties. We know that the administration of an estate can be confusing to many, especially in complex and high value estates where there is a combination of assets including business holdings, significant investment portfolios, private equity interests or valuable art and collectibles.

 

If you are an executor and estate trustee, the lawyers at Sherman Law LLP have over 40 years of experience, focus and skill in this area and can provide you with reliable guidance and assistance with the numerous legal and financial intricacies that you will face in your role with the administration of an estate.  We take a wholistic approach to estate administration by examining tax and financial issues, as well as legal concerns. We know from experience that each estate is different. We take the time to learn the unique facts and circumstances of the estate so that we can identify any potential issues in advance, as well as to provide you with a variety of options to resolve unforeseen complications. 

  Upset and frustrated woman in front of a laptop

 

 

 

 

 

Estate administration and probate can be complicated and frustrating.

 

When a spouse, relative, or friend passes away and you have been named as the executor and estate trustee, you may find yourself with many obligations and uncertain as to where to start or what needs to be done. The administration of an estate can be a complicated and time-consuming task for a person that is not experienced in the law, especially in complex and high value estates where there is a combination of assets including business holdings, significant investment portfolios, private equity interests or valuable art and collectibles.

 

As an executor and estate trustee, we can assist you in obtaining court approval of your administration through the court, and all aspects of estate administration called a Certificate of Appointment of Estate Trustee of a Will, which also known as a Grant of Probate.

 

Probate refers to the legal process intended to validate or "prove" a Will.  The court needs to review and approve that the Will is duly recognized as the uncontested and legally valid last Will and Testament of the deceased. Probate is typically the first step in the administration of an estate. 

 

We know that often you are administering an estate for the first time and you may have many questions. You can rest assured that we know what must be done, how to do it efficiently, and how to advise you to carry out your responsibilities as an executor and estate trustee to minimize personal liability and future legal problems.

 

What is an executor and estate trustee?

 

In Ontario, the term executor and estate trustee are often used interchangeably and essentially mean the same thing. An executor or estate trustee is the person or persons who are appointed to manage the affairs and wishes of the estate of a deceased person in accordance with the instructions, provisions and terms as stated in the Will. The executor and estate trustee is appointed either by the testator of the Will or by a court, in cases where the was no prior appointment or Will. An executor and estate trustee is responsible for making sure that all of the assets in the Will are accounted for and that those assets are transfered to the correct beneficiaries. The executor and estate trustee is also responsible for ensuring that all of the debts of the deceased are paid, including an taxes. The executor is legally obligated to meet the wishes of the deceased and to act in the interest of the deceased.  Being an executor and estate trustee is a large responsibility where complications can arise. 

 

We assist clients in determining assets and values and preparing all of the legal documents necessary to make an application to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee with a Will, which is also known as a Grant of Probate. The Certificate of Appointment of Estate Trustee with a Will is a court Order that confirms that you have been appointed as the executor of the estate, and is usually a requirement so that financial institutions and others will follow your instructions with regard to the sale or transfer of assets for the purposes of eventual distribution of the estate to the beneficiaries.

 

What are your responsibilities as an executor and estate trustee? When is probate necessary?

 

As an executor, your duties and responsibilities begin upon the death of the deceased. Your job is to obtain a Certificate of Appointment of Estate Trustee with a Will, also known as a Grant of Probate by gathering up all of the assets of the estate and providing an inventory and assigned monetary value. Asset appraisal is a mandatory step in the probate process. All assets including cash assets such as bank accounts and investment accounts must be appraised in addition to non-cash assets such as real property, real estate, vehicles, jewellery and other property. You must also account for all of the debts and liabilities of the estate. Next, it it is the responsibility of the executor and estate trustee to settle and pay all of the debts of the estate and then gather the assets for safekeeping. You will also need to work with an accountant to ensure that proper accounting is completed with Canada Revenue Agency and that a Clearance Certificate is obtained prior to distribution of the estate. Finally, you will distribute the estate as required by the Will.

 

You have personal liability for your work as an executor and estate trustee for an estate, so we highly recommend that a member of our legal team assist you with the process. Our team of Kitchener estate administration lawyers can assist you with regard to fulfilling your responsibilities as executor by assisting you with various aspects of the administration to ensure that you are meeting your responsibilities. The estate will reimburse you for any out of pocket expenses that you incur with regard to your role as an executor and estate trustee. Therefore, you should keep detailed receipts during all of your duties as an executor and estate trustee, which will be included in your report to the beneficiaries. Frequently, the legal fees for the administration of the estate are also paid from estate funds, which means that our services rarely cost you personal expense. 

 

When face with the death of a loved one, clients often ask us whether or not probate is necessary. While it is not necessary in all cases, it is often difficult to know at the onset. Some Wills require probate, while other Wills do not. For this reason, it is a question best answered during a consultation with a member of our legal team.

 

In some circumstances probate is not required. Some assets do not require probate in order to transfer ownership to the named beneficiary. Asses such as jointly held real property such as land, registered savings and investment accounts with named beneficiaries, or life insurance policies often do not require probate. In some circumstances, all that is required is a death certificate.

 

In some cases probate is mandatory, and may be required in the following instances:

 

  • To transfer ownership of real property including land from the name of the deceased to the beneficiary

  • To obtain and give instructions to financial institutions such as banks, brokers, and land registrars that are receiving proper legal directives

  • To provide clear and decisive legal proof that the executor has the right to act on behalf of the deceased

  • To protect the estate and setting clear time-lines and statutory limits for claims filed against the estate

 

Completely overwhelmed? Relax, we can help.

 

Managing an estate and assisting estate trustees requires a law firm with knowledge, diplomacy, compassion, expertise and skill. At Sherman Law LLP, our lawyers work closely with our clients to guide them through their duties and responsibilities as an executor and estate trustee. You can take comfort in the knowledge that if complications arise during your role as an executor and estate trustee, you will have the support of an entire firm of legal professionals with experience in many related fields, including real estate and family law to help you resolve any unforeseen complications in fulfilling your duties on behalf of the estate.

 

Our firm can assist you in the administration of the estate in order to ensure that you are aware of all of your obligations to the estate and to the beneficiaries. Our Kitchener estate administration lawyers will provide you with objective advice and the support you require during this challenging time, giving you the benefit of over 40 years of firm experience in estate law. The level of our services can be customized to your specific needs.

 

Our Kitchener estate administration lawyers have experience providing the following services:

  • Interpreting a Will, Codicil or Trust

  • Providing sound legal advice on issues concerning the administration of the estate to protect you from any personal liability

  • Preparing and filing the application for the Certificate of Appointment of an Estate Trustee with (or without) a Will with the Ontario Superior Court of Justice to confirm your appointment as the Executor and Estate Trustee

  • Estate probate applications

  • Preparing an advertisement for creditors, if required

  • Assisting in maintaining accurate bookkeeping records

  • Applications for clearance certificates from the Canada Revenue Agency

  • Assisting with the transfer and/or sale of assets

  • Estate Trustee compensation

  • Maintaining detailed accounting records using specialized software in preparation of estate accounts for audit by the court, should passing of accounts be required

  • Notifying beneficiaries and their interest in the estate

  • Distribution of assets to beneficiaries

  • Preparing legal documents and releases for the signature by the beneficiaries when they receive their interim or final share in the estate

  • Assisting with the administration of the estate to protect the Estate Trustee from any personal liability

 

 

 

 

Do you want to learn more about estate administration?

 

For over 40 years, clients have trusted in our ability to explain their rights and obligations with respect to estate administration. We are confident that you will appreciate our professional and personalized service. We invite you to browse our website and read the positive things others have to say about us. To benefit from our knowledge, experience, and compassion with respect to your role as an executor and estate trustee, please contact 519-884-0034 or send us an emailMany of our clients are referred to us by former and current clients, as well as by lawyers, accountants, and financial advisors. We serve clients in Kitchener, Waterloo, Cambridge, Guelph and surrounding areas.

 


 

Connect with a lawyer in our firm with expertise in this area

 

Aubrey J.  Sherman

Aubrey J.  Sherman