Death without a Will
Where a person dies without a will (intestate), provincial legislation determines how the deceased’s estate is distributed. In Ontario, the Succession Law Reform Act sets out the distribution of an intestate estate.
If a spouse or someone close to you has died without a will, contact us to set up a consultation with regards to your options and rights.
Appointment of a Trustee with or without a Will
The issue of whether a will needs to be probated can be complicated. Depending on the size and nature of the assets in the estate and the possible issue of challenges and other disputes involving the will, probate may be required. Additionally, many financial institutions require that probate be received prior to giving the named estate trustee access to the deceased person’s funds.
Making the correct decision and seeking the help of a professional can save the named executor time and frustration.
If you are an executor named in a will, contact us to set up a consultation on whether probate may be needed.
Interpretation of Wills or Trusts
The language of a will or trust can sometimes be ambiguous or unnecessary or could be the product of a drafting error. These issues can especially arise where the will is “homemade” or drafted by a non-professional. In such cases, a proceeding may be brought before the courts to seeking its assistance in clarifying the contents of a will.
If you are an estate trustee tasked with interpreting an ambiguous will or a beneficiary whose rights could be affected by unclear terms in a will, we encourage you to contact our office to set up a consultation to discuss your options.
Assistance with Estate Administration
The executor of an estate has the duty to administer the deceased estate. However, the administration of an estate can be complicated, challenging, intimidating and could create potential personal liabilities for the executor.
As an executor, you want to ensure that the estate is administered in a timely and correct manner and that your personal liability is minimized.
If you have been named as an executor in a will, contact us as soon as possible to set up a consultation to discuss how we may assist you in the administration of the estate.
Executor’s Duties and Liabilities
If you have been named as an executor in the will, you have a choice either to accept this responsibility or renounce your role as executor. If you would like to renounce your role as executor, you have to do so prior to taking any actions which creates the appearance that you are acting as the estate trustee.
If you decide to act as the executor, you should be aware of your obligations and duties as the executor. Once you accept this role, you are bound to finish administrating the estate and can only be relieved of the responsibility by a court order. Your duties can include arranging for and paying for the funeral, arranging for care of dependants and pets, securing the assets of the deceased, stopping all unnecessary expenses, transferring the deceased’s assets, notifying creditors, paying debts, filing tax returns, continuing legal actions etc.
The role of an estate trustee can be complex and we encourage you to contact our office to set up a consultation to discuss how we can assist you in your role as estate trustee.
Passing of Accounts
A passing of accounts is the presentation of formal accounts by the trustee to the beneficiaries and the court which are either approved in the form presented, or amended by a court order and passed in a different form, or not passed due to the fact that for some reason the court is not satisfied with the accounts or some aspect of the administration of the estate.
Upon the passing of the accounts, the estate trustee is relieved of any further accounting for the relevant period except for allegations of fraud or mistake.
If you are a trustee seeking to pass accounts, we ask you to contact our office to set up a consultation to discuss the process for the passing of accounts.
As a beneficiary under a will or a trust, you also have the right to request that a trustee pass accounts. If a trustee does not voluntarily take steps to pass accounts, the beneficiary may seek a court order requiring the trustee to pass accounts. If you are a beneficiary who wants to obtain more information about the administration of a trust or estate, we ask that you contact our office to discuss how you may enforce your rights.
Compensation for Trustees
Your work as a trustee can seem endless and thankless. However, as a trustee, you are entitled to compensation. In addition to the costs/expenses incurred on the basis of reimbursement, trustees are entitled to compensation for the services rendered in administering the estate or trust.
Where the estate or trust is silent as to the compensation, trustees, under the Trustee Act, are entitled to be compensated for their services on the passing of accounts. As the Trustee Act does not specify how the trustee’s compensation should be quantified, the courts look to the common law to set the quantum of compensation.
Compensation is also available for powers of attorneys for property and personal care.
If you are a trustee or a power of attorney and would like to discuss the issue of compensation, please contact our office to set up a consultation.