Probate and Estate Administration
In Ontario, Estate Administration can be a challenging process. The Estates Administration Act is one of the major acts which governs estate administration in Ontario. The person (known as administrator or executor) who administers the estate has a duty to comply with all the legal requirements of the estate administration process.
Probate is the process in which a Judge proclaims the current will to be valid. The court also confirms the integrity of trustees or executors to administer the estate which validates their appointment.
In many circumstances, completing the probate process is necessary. It is an integral part of the entire Estate Administration process. The absence of timely probate can even lead to a delay in administering the estate. For example, few institutions such as banks or insurance companies can also refuse access to funds till the probate process is complete.
Completing the Probate safeguards the executor or trustee from any future personal liability for the estate administered by them. If a court probates a will, and estate assets are distributed, the trustee or executor is protected from any personal liability. They remain safe from personal liability even if a subsequent will is uncovered.
Probate & Estate Lawyer
In Ontario, probate fees are also known as Estate Administration Tax. After the will is probated, the tax becomes payable.
In a situation, if a testator wishes to add adult children in a bank account, it can be seen as an attempt to avoid payment of the estate administration tax.
As per the tax payment guidelines, the tax amount is 0.5% on the first $50,000 of the estate while it is 1.5% on all amounts over $50,000. If the adult child is already a joint tenant as a survivor, probate fees are avoided. Consulting a Probate Lawyer is recommended to stay on the right side of the law and avoid any unnecessary legal hassles.
In the example, the law will assume that the account is being held in trust for the estate beneficiaries. Any other reason has to be proved with evidence to reverse the assumption. In such a case, the child will receive the account due to the survivorship clause.
Estate Administration in the presence of a Valid Will
A will mentions the person (known as the executor) who is entrusted with administering the testator’s estate. Though there can be more than one executor, they need to apply for a Certificate of Appointment as an Estate Trustee with a Will.
Such an application needs to be made to the court, which issues the certificate upon determining and verifying the veracity of the will. Receiving this certificate confirms the executor’s appointment.
Estate Administration in the Absence of a Valid Will
In the absence of a will, the court appoints the surviving spouse or any other person to administer the estate as the executor. Any other family member is also eligible to apply to act as the executor if the spouse is unwilling or unable to serve in this capacity. Otherwise, a lawyer, close friend or the Public Guardian and Trustee can be appointed as executor, in the absence of any family member to act as such.
A Certificate of Appointment of Estate Trustee without a Will is issued by the court which allows the executor to distribute the estate as per intestacy rules.
Duties of the Executor
In many circumstances, the executor may be in such a position for the first time and may not realize the full extent of their duties, obligations and responsibilities and the accompanying risks.
In an executory capacity, they have a fiduciary duty to the estate beneficiaries for the estate they are managing and administering. The executors have to comply with high legal standards and need to act with complete integrity. They must always in good faith and in the best interest of the beneficiary. Any abuse of the fiduciary duty or inability to perform their duty can make them liable for financial and legal consequences.
At Nanda & Associate Lawyers, we can assist executors in administering different kinds of estates. It is recommended that Estate Executors seek independent legal advice from experienced Estate Lawyers to make themselves aware of their legal rights, duties and obligations. They need to make sure that they are not exposed to estate litigation at any time.
How We Can Help
At Nanda & Associate Lawyers, our experienced Estate Lawyers understand your specific circumstances and provide tailored and customized solutions. If you are an executor or a trustee and need legal advice for probate or estate administration, please call us. If you are involved in an estate administration dispute, we can help.
Our Mississauga Wills and Estate Lawyers are available for an initial consultation. Come and experience our quality legal advice and personalized care we provide to each client. We ensure prompt communication and a professional approach to achieve successful outcomes for you.