Probating and Estates
Even the most straightforward estates can present unique challenges and complications. Acting as an estate trustee is a significant, time-consuming undertaking and carries with it the potential for personal liability. Estate trustees need to clearly understand their role, responsibilities and duties in managing estates.
At Allan Law, we can advise you about all aspects involved in your role as estate trustee to assist you in meeting your obligations and safeguard you from any potential liability.
We are involved in all aspects of assisting with estate administration. You can retain us simply to assist in obtaining a Certificate of Appointment of Estate Trustee with or without a Will, as the case may be (formerly called, Letters Probate or Letters of Administration) or to assist with the ongoing management of an estate.
Our services include:
Reviewing a deceased’s Last Will and Testament;
Advising you of your duties and responsibilities as estate trustee;
Providing advice and assistance in securing the assets of the estate;
Advertising for creditors and assist in settling debts;
Reporting to beneficiaries on your behalf about the administration of the estate;
Providing advice regarding interim distributions;
Preparing estate accounts and calculate your compensation;
Assisting in obtaining the necessary tax clearances from the CRA;
Preparing and obtaining releases from beneficiaries (a release is a legal instrument which, when executed, acts to terminate any liability against the estate trustee), and
Dealing with any issues that may arise in the administration.
Many wills require “probate.” This process is now known as making an Application for a Certificate of Appointment of Estate Trustee with a Will or Without a Will. The Application results in the issuance of a Certificate to the estate trustee.
When someone dies without leaving a will (referred to legally as an “intestacy”), probate of the estate is almost always required.
While the authority to manage an estate is derived from the will, financial institutions generally require estate trustees to obtain a Certificate of Appointment before they disburse any funds to the estate trustee. The Certificate of Appointment is also required if the deceased owned any real estate at the time of death.
If two individuals hold title to a property as “joint tenants” and one of the owners dies, it may be necessary to complete a Survivorship Application to deal with the various complications that can arise for the surviving joint tenant. We can assist with this application and assist with any questions arising out of the administration of an estate.
Advice to Beneficiaries
We frequently act for beneficiaries who retain us to oversee the administration of an estate. Such clients may feel that the estate is not being managed properly and wish to have their own counsel involved to help protect their interests. We are involved in all aspects of overseeing the management of an estate, including with respect to reviewing accounts, releases, and advocating for the timely and effective management of an estate.
Passing of Accounts
One of the more common areas of dispute between trustees and beneficiaries involves accounting.
Essentially, an accounting involves a trustee advising the beneficiaries of the details regarding the financial management of the estate; including what was received into the estate; what happened to the assets; what the debts of the estate were and what happened to those debts; and what money is available for distribution.
Trustees have a duty at law to account to beneficiaries. This means that they have an obligation to maintain proper books of account and to present those books to beneficiaries when called upon to provide the information.
An accounting protects both the beneficiary and the estate trustee. For the beneficiary, it assists them in understanding what happened in the administration and why they are receiving what they have been given. In terms of the trustee, he or she wants to ensure that beneficiaries are satisfied with the management. The trustee also may wish to obtain a release following the accounting (a release is a legal instrument which acts to protect the estate trustee from liability) along with compensation.
Allan Law can assist in preparing accounts or in reviewing accounts presented to beneficiaries.
Last Will and Testament
It is important to have a well prepared Last Will and Testament to ensure that your succession planning wishes are carried out properly and effectively. We charge a reasonable flat rate for drafting Wills.
Power of Attorney
A Power of Attorney is a legal document which authorizes the person you name as your representative to act on your behalf under certain circumstances. The Power of Attorney for Personal Care allows your representative to made decisions on your behalf regarding your health while the Power of Attorney for Property allows the representative to manage your finances. We charge a reasonable flat rate for drafting Powers of Attorney.