The Estates Administration Act is the main legislation governing affairs within estates in Ontario. The estate trustee or ‘executor’ has a fiduciary duty to comply with all the legal standards of the administrative process. The administering of an estate may be simple with few issues, but it may also be a lengthy process with many details that require careful attention. Some of the steps involved are:
- Funeral Arrangements
- Handling any potential legal issues
- Identifying, securing and dealing with assets
- Identifying and paying debts or claims against the estate
- Obtaining a Certificate of Appointment of Estate Trustee (Probate)
- Identifying, locating, and distributing the balance of the estate to the rightful beneficiaries
First and foremost a judge must validate a Will, this is known as probate. The court then confirms the appointment of a trustee/executor to administer the estate. Completing the probate process in a timely manner is vital because an untimely probate can lead to a delay in administering the estate. Once complete, the trustee/executor is protected from any future personal liability for their administration of the estate, even if, for example, another Will is uncovered.
The trustee has an obligation to administer the estate in a reasonable period of time according to Ontario legislation and case law. A traditional concept known as “the executor’s year” is a useful approximation for how long the entire process should last. However, probate applications may take several months in Ontario so the one-year rule is an approximation and may be subject to change.
If a reasonable period of time has come and gone without a probate application, a beneficiary may apply for a Court Order to compel the executor to “renounce” themself. If the executor promptly renounces, then the next family member or applicable person can apply to be estate trustee.
When an executor is uncooperative, a beneficiary may put forward an Application for Directions or an Order to Pass Accounts. An Application for Directions is flexible and wide-ranging but also costly and time-consuming. In order to avoid these problems, it is best to communicate with all those involved regularly and be prepared for sudden changes.
Where there is a valid Will mentioning an executor, the process is fairly simple. The executor(s) need to apply for a Certificate of Appointment as an estate trustee with a Will. However, many people pass away without having left a Will and so the court, pursuant to the Succession Law Reform Act, will usually appoint a spouse or other reasonable person to administer the estate. Any family member may apply to be executor if the surviving spouse is unwilling or unable to be in the position.
The duties of an executor are usually more complex than what is listed above. It is common for an executor to be a first-time administrator and not realize the extent of their fiduciary duty. Executors are required to act in good faith and always in the best interest of the beneficiaries. Abuse of this fiduciary duty may lead to court action which includes a financial penalty, or sometimes even estate trustee removal.
In the event, an Ontario resident dies and there is no eligible person to administer the estate, the Office of the Public Guardian and Trustee (OPGT) steps in to protect the interests of any potential beneficiaries, and this power is derived from the Crown Administration Estates Act.
Why Choose Us?
At Bickhram Litigation, our team of legal professionals can work with you whether you are an estate trustee or a beneficiary. No matter how big or small the estate, we will ensure that you are afforded the best legal advice to make you aware of your rights. For any estate administration inquiries, please contact us for your complimentary consultation.
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