When a person dies the property he or she holds in their own name, whether real or personal, is called an estate.
A Will is a legal document that names the person or persons appointed as estate trustee (formerly an executor/executrix) and sets out the scheme of distribution of the assets. It also provides the powers that enable the estate trustee to administer the estate.
The authority for administering the estate comes from the Will (not the certificate of appointment) and is effective the moment the person dies.
If a person dies without a Will their estate is governed by the laws of intestate succession and statutes dictate who can apply to be estate trustee and how the deceased’s property is distributed.
An estate trustee is the only person who has the proper authority to deal with the deceased’s property – not their spouse, family or attorney for property.
The term probate refers to the process where the court grants official authority to the estate trustee to deal with the deceased’s property. The court grants a Certificate of Appointment to the estate trustee which is the document that proves the estate trustee has the authority to deal with the deceased’s property.
Probate is obtained provincially by filing certain documents with the court and paying the estate administration tax.
Probate is not always required. It is the nature of the assets that will determine whether probate is necessary and legal advice should be sought to determine what procedure should be followed to administer the estate.
The Estate Trustee
The law imposes certain duties and obligations on the estate trustee to ensure he or she acts diligently and honestly and for the benefit of the beneficiaries. It is a high standard of care that is imposed resulting in unlimited personal liability for breaches of his or her fiduciary duties.
The duties and responsibilities of an estate trustee result from the common law of fiduciaries, applicable statutory provisions and as may be set out in the Will itself.
Where multiple estate trustees are appointed, they must act unanimously unless the Will provides otherwise.
If an estate is the subject of litigation a court may appoint an estate trustee during litigation to administer the estate with limitations depending on the nature of the litigation. In most circumstances the estate trustee during litigation can deal with the assets of the estate, pay the deceased’s debts and file the estate income taxes however they do not have the authority to distribute the estate.
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