So, you have been named as an “estate trustee” (i.e., executor) in a last will and testament – what now?

This is typically an onerous role, so it is important you understand your duties and potential liabilities if you accept this role, which you must decide at the outset.

In Ontario, “probate” is an antiquated legal term, but it commonly used in estate-related matters to this day.

Probate is the court processes that proves the validity of a will and provides the power and control to the estate trustee (also known as a Personal Representative) to act on the instructions left in the will by the deceased.

Upon a successful granting of probate, the will is confirmed by the courts as the last valid will of the deceased.

Importantly the process requires notice to those who are involved in the estate (directly through being named in the will) or should be involved in the will (through statute). For instance, if the deceased did not make any provisions for his or her spouse in the will, the spouse has to be notified of the probate.

What does the probate process look like?

Speaking generally, probate looks like:

  1. Some investigation into the estate (What did the deceased own? Are there outstanding debts?);
  2.  A sizeable amount of paperwork (known as application forms, available online or through your lawyer);
  3. Swearing or affirming that paperwork in front of a Commissioner for Oaths; and
  4. Electronically filing your paperwork with the Court, after properly serving the paperwork on everyone who is required by statute.

The court clerks then review the forms. If they require any changes or have any concerns they will contact you for revisions. If the documents are in order, the forms will be provided to a Superior Court Justice for review and, if all is in order, approval.

You will then be notified by the clerks that you have received a Certificate of Appointment of Estate Trustee With a Will (sometimes referred to as a “grant of probate”).

Handling probate without a lawyer

Do you need a lawyer?

In straightforward situations it can be relatively easy. If the will is straightforward and the estate is straightforward an estate trustee may not require the professional assistance of a lawyer.

If this is not the case an estate trustee may want the assistance of a lawyer to help navigate through the application and filing processes.

Sometimes it can be hard to know if a will or an estate is straightforward and an estate trustee may not know whether they even need a lawyer.

Things to consider

Questions to consider include:

  1. Does the will meet the formal requirements of a valid will?
  2. Is it clear what the testator’s estate is comprised of?
  3. Is the will clear as to who should receive the estate under the will?
  4. Did the testator exclude someone who is required by statute to receive notice of probate?
  5. Should the executor take additional steps to locate creditors or debts of the deceased?

There are many other issues that may make a probate process contentious.

Contentious probate

A contentious probate means there is a dispute relating to the administration of the estate.

This could be:

  • a dispute over the validity and/or interpretation of a will,
  • a dispute over the circumstances of the execution of the will (the capacity of the testator for instance),
  • a dispute between the estate trustee and a beneficiary, or
  • a dispute of the worth of the estate… to name a few.

Not all of these disputes can be avoided, but an executor who is aware of these issues at the outset is better able to take informed steps in the process and ideally better serve the estate.

Credit:  Eleanor Carlson, Carbert Waite LLP, published via Lexology.com on Oct. 15, 2020


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