(This is an edited version of our Client Guide which provides general information and is made available to our clients to assist them to understand the duties of an executor or estate trustee. This is not intended to constitute legal advice, which by its nature is situation specific. If you have questions about a specific legal problem as an executor or estate trustee of an estate, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation, rather than relying on the general information provided in this Guide.)

An estate trustee is the name that is now used in the Rules of Civil Procedure to describe an executor where there is a will or an administrator where the testator or testatrix did not leave a will. The duties described here generally apply to estate trustees with or without a will. Many people are honoured to be named an executor or estate trustee. It is, of course, an honour to have earned the respect of the testator or testatrix such that he or she is prepared to trust the executor to carry out the wishes expressed in the will. However, such honour also brings with it significant responsibilities and sometimes, hard work.

Here's a brief outline of what is expected of an executor or estate trustee:

• to make funeral and burial or cremation arrangements. While most expect that this is the responsibility of the surviving spouse or other next-of-kin, the legal authority rests with the executor or estate trustee named in the will. Of course, it would be a very unusual situation where the executor would not consult the family members and take their wishes into account. Testators and testatrices should ensure that any special wishes for funeral arrangements, organ donations and burial or cremation wishes are carefully communicated to the executor prior to death as often the will may not be reviewed until after the funeral.;

• to locate and review the will and determine that it is the final will. Ensure that your executor or estate trustee knows where your most current will is kept. Do not keep a will in a safety deposit box as access to it may not be available to your executor without extra difficulties. Most lawyers will retain the original of your will in their offices without charge or you may file it with the registrar of the Superior Court of Justice in the county, district or municipality in which you are resident;

• to identify the beneficiaries in the will; determine their addresses, then notify them of the gifts provided for them in the will. Keep them advised of the progress of the administration of the estate and the anticipated distribution timing. Often, the executor will meet with family member beneficiaries, together with the estate solicitor to review the will provisions and explain the administrative steps likely to occur during the administration of the estate;

• to locate estate assets. This is a lot more work than it sounds. It may involve detective work to locate bank accounts, safety deposit boxes, GICs, RRSP plans, real estate and any other property owned by the testator unless he or she kept fairly good records that can be located. Use the Hooey Remus Estate Information Sheet to make it easier for your trustee to become familiar with your financial affairs and the location of your assets. This function may also involve the tedious work of cleaning out a house or apartment and disposing of personal effects. Where out of town properties are involved, the executor must make appropriate arrangements with others for the maintenance and security of the property pending disposition. Generally, subject to the powers given to the trustee in the will, the executor will convert estate assets into cash in a timely way;

• to notify business associates, bankers, stockbrokers, tenants and others, where required, of the death and arrange for re-direction of funds from dividends, stocks, bonds, investments, rental income and the like to the estate;

• to compile an inventory and assess the value of estate assets;

• to secure and insure the assets of the estate;

• to obtain a certificate of appointment of an estate trustee, if required (formerly known as letters probate). This step may not be necessary where the types of estate assets to be transferred to beneficiaries do not require such formal documentation;

• to open an estate banking account. A chequing account will allow for more convenient and complete banking records;

• to keep the required records of receipts and disbursements so that an accurate accounting can be provided to the beneficiaries and to the court;

• to prepare and pass accounts to obtain court approval where required;

• to determine and assess the debts and obligations of the estate. Correspondence or telephone contact may be necessary to cancel newspaper and magazine subscriptions, club memberships, car leases, tenancies and the like. This may also involve advertising for creditors, which is why there are often those curious, legal announcements in the newspaper directed to the creditors of a deceased person;

• to pay all proper debts, contest the validity of any debts that are considered doubtful liabilities and settle any compromised claims;

• to file any tax returns for prior years which the testator had not completed, to file a final or terminal return for the testator, to file a trust return for the estate for each year that there are assets under administration and to pay the taxes owing;

• to apply for the Canada Pension Plan death benefit, if available;

• to administer any trusts contained in the will in accordance with their terms;

• to consider, with the assistance of the estate solicitor, the impact of a spousal election, if any, under the Family Law Act on the distributions under the will;

• to distribute the assets to the beneficiaries after all debts and estate obligations have been met and obtain receipts;

• to obtain professional assistance, where required to fulfill these obligations, to the extent permitted by the trustee powers in the will and by law. However, the ultimate decision making power must remain with the executor since, except in limited circumstances, an executor generally cannot wholly delegate his or her authority.

Where a question arises concerning the sale or management of estate property or administration of the estate, an application may be brought to the court for directions.

   FURTHER QUESTIONS

Any questions? If you have any questions about your responsibilities, please contact us at:

W. Bruce Drake

Hooey · Remus

Telephone: (416) 362-2051

Facsimile: (416) 362-3646

Suite 400, 1 University Avenue

Toronto, Ontario M5J 2P1

 

eMail: bdrake@hooeyremus.com

Website: www.hooeyremus.com

This page was originally created on September 30, 2000 and was last updated on December 14, 2001.

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