It is the role of the Executor (sometimes referred to as an Estate Trustee) to administer an Estate. The role of an Executor is to firstly, deal with the funeral arrangements for the deceased person. The Executor should honour any funeral or similar wishes of the deceased.
The Executor must then take control of and preserve the assets of the deceased and use those assets to pay the debts and taxes of the deceased. Only after the debts and taxes of the deceased have been paid off, should the Executor distribute the remaining (residue) property to the beneficiaries.
The Executor is personally liable to any outstanding creditors of the deceased, who have not had their debts paid. Such creditors can include the CRA/government bodies. It is therefore imperative that a thorough search for any existing creditors, be undertaken, to ensure all debts have been repaid.
The administration of an estate can be simple or complex, depending on the deceased’s circumstance. What is required to do, differs from estate to estate, and can take some considerable time and effort to accomplish.
Having a lawyer guide you through the process of administering an Estate can help make the process easier, less stressful and reduce your risk of personal liability.
Generally, people refer to “Probating” a Will, without fully understanding what is involved.
Probate is the process of proving a Will. It is not, generally, the process by which an Executor is appointed to administer an Estate. This is because the authority to administer an Estate is granted to the Executor, by the Testator, through naming the Executor in that role, within the Testator’s Will.
While the term “Probating” an estate has been engrained into everyday language, the Courts no longer refer to the process of “Probating” a Will, as such. Instead, where it is necessary, the Executor may make an Application to obtain a Certificate of Appointment (formerly “letters Probate”).
The issuance of a Certificate of Appointment of Estate Trustee confirms that the person(s) to whom the Certificate has been issued are the appropriate person(s) to take control of and administer the property of the deceased.
Where there is no Will, the Ontario Superior Court has the ability to grant authority to administer an Estate to anyone who applies and can convince the Court that he/she is an appropriate person to do so.
Whether you as the Executor are required to make an Application to obtain a Certificate of Appointment, is a fact dependent question and must be assessed on a case-by-case basis.
Generally speaking, an Executor will be required to obtain a Certificate of Appointment (Probate) in one of two instances:
1. The deceased owned real property (land), either solely (100%), or as a Tenant-In-Common (meaning they owned a percentage of the property); or 2. The deceased held large sums of money or investments at either a bank of investment firm.
In the first instance, the Executor will be required to obtain a Certificate of Appointment, as the Land Registry Office will not permit an Executor to take control and transfer the deceased’s real property, without first obtaining a Certificate of Appointment. However, there are a few exceptions to this rule. In order to determine whether one of these exceptions applies, you should seek guidance from a lawyer.
In the second instance, the Executor may be required to obtain a Certificate of Appointment in order to satisfy either the bank or investment firm, which currently holds the deceased’s financial assets, before they will hand over the deceased’s property to the Executor. This is because the institution (banks, and investment advisors, etc.) may refuse to deal with an Executor upon simple presentation of a Will.
Before handing over the deceased’s assets, they, the banks/institutions, want to ensure that the individual who has presented themselves as the Executor, is the appropriate individual to be administering the Estate. As a way to protect themselves from claims that they have given the property of a deceased person to an improper person, the institution may require that a certificate of Appointment be obtained, thereby proving that the individual before them, has been properly appointed.
The process for applying and obtaining a Certificate of Appointment requires foresight and patience.
We can assist you with completing the Application and provide direction and advice in respect of all matters pertaining to obtaining a Certificate of Appointment of Estate Trustee and the subsequent administration matters that arise afterwards.
Acting as an Executor comes with responsibilities and obligations which are extensive and can be complex. We can advise you regarding your role and assist with the issues which will arise in your administration.