The role of an estate trustee is to administer the assets of an estate according to the wishes of the deceased individual, while following the laws governing the administration of estates and trusts in Ontario. Here are some key (but not all) of the responsibilities of an estate trustee:
- Make the Funeral Arrangements: An estate trustee is responsible for arranging the funeral. The expenses for the funeral can be charged to the estate. While an estate trustee has legal authority to determine the manner of the funeral, it is encouraged to honor the wishes of the deceased. Those wishes may be set out in the deceased’s Will, but such wishes are not binding on the estate trustee.
- Locate the Original Will and any Codicils to the Will: An estate trustee should locate and review the Will, along with any codicils to the Will, to clearly understand the wishes of the deceased. The deceased may also leave memorandums with their Will with further wishes.
- Determine Assets and Liabilities of the Estate: This may involve determining if the deceased owned any real property, contacting financial institutions to obtain statements showing value of holdings or liabilities as of date of death, determining if there is any valuable personal property that may need to be appraised, and determining if the deceased had a safety deposit box.
- Retain a Lawyer: An estates lawyer can provide advice and assistance with a variety of aspects of administering an estate including, but not limited to, advising whether it is necessary to obtain a Certificate of Appointment of Estate Trustee from the court (and preparing the necessary application materials), preparing notarial copies of the Will, preparing a statement of original assets, notifying beneficiaries of their interest in the estate, advising regarding any potential claims against the estate, preparing documentation for transfer of assets, providing advice on tax payable by the estate, advertising for notice to creditors, providing advice on executor’s insurance, and providing services related to estate accounting and ultimate distribution of the estate.
- Ensure Insurance Coverage: The insurance providers for real estate and any vehicles should be notified of the deceased’s passing and coverage should be held in the name of the estate trustee until the property is transferred or sold.
- Provide for Immediate Needs of Dependents: The estate trustee should determine if the estate should continue supporting immediate needs of dependents, including a spouse and any children of the deceased until the estate is fully and property distributed.
- Transfer Property: Jointly held property may need to be transferred to the survivor based on the circumstances under which the joint ownership was created.
- Family Law Act Election: The surviving spouse of the deceased has the option to elect to receive one half of the difference between their and their deceased spouse’s net family property instead of taking under provisions of the Will. The surviving spouse has 6 months from the date of the deceased’s death to make this decision, therefore the estate trustee is not to make any distributions without consent of the spouse during this period.
- Notifying Beneficiaries: The estate trustee must notify beneficiaries of their interest in the estate. Beneficiaries receiving a specific gift, such as personal property, are to receive only the portion of the Will that specifies the gift, while other beneficiaries are to receive a full copy of the Will.
- Determine if a Certificate of Appointment of Estate Trustee is Required: In some circumstances, a court certificate confirming appointment of the estate trustee may be required for property transfers and withdrawal of the deceased’s funds from the bank. If such an application is required, the estate will be required to pay estate administration tax based on the value of assets in the estate.
- Estate Information Return: Estates trustees are required to file an estate information return to the Ministry of Finance 180 days after the issuance of a Certificate of Appointment of Estate Trustee.
- Estate Bank Account: An estate bank account can be opened after obtaining a Certificate of Appointment which can be used to receive assets of the estate and make distributions to the beneficiaries.
- Estate Tax Filings: The estate trustee is responsible for filing an income tax return for the deceased in the year of death, which is typically due by the later of: six months after date of death or April 30th in the year following the year of death. Further, the estate trustee is also required to file an estate tax return in each year of the estate’s administration. In the interest of avoiding personal liability, an estate trustee should obtain a clearance certificate from CRA before distributing the assets of the estate.
More information? We’re here to help – estates@wardlegal.ca. This WARDS LAWYERS PC publication is for general information only. It is not legal advice, nor is it intended to be. Specific or more information may be necessary before advice could be provided for your particular circumstances.