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ACTING AS ESTATE TRUSTEE: ARE YOU READY?
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A family member has contacted you with a request that you act as an Estate Trustee on their Last Will and Testament. Should you act?

A friend or family member has recently died and you have been informed that you are an Estate Trustee under their Will. What are your duties and responsibilities?

You are in the process of making or revising your Will. What type of person should you consider for appointment as your Estate Trustee?

An Estate Trustee is a person named in a Will who is responsible for administering and distributing the property of the deceased. It is a position of trust. Therefore, the duties and responsibilities must be carried out honestly, in good faith, and in the interests of the beneficiaries.

An Estate Trustee should possess some specific qualities. These include availability. An Estate Trustee should be located in a geographical area close to the deceased so that the duties can be performed expeditiously, efficiently, and at a reasonable cost. An Estate Trustee should be financially capable and responsible since the Trustee's tasks will include dealing with bank accounts, managing investments, and disposing of property (real estate and personal property). An Estate Trustee should have good people skills and be able to interact well with others since they will have to deal with personal beneficiaries, representatives at financial institutions, and government officials. Finally, reliability is an essential attribute of an Estate Trustee since they will be called upon to make careful decisions and to exercise sound judgment in the realization of assets and the distribution of the same. In short, the selection of an Estate Trustee should not be based primarily on friendship or affection, but on skills and maturity.

In the normal course, a family member will be selected as an Estate Trustee. As between married persons and other domestic arrangements, spouses and partners are usually the preferred appointments for the position of Estate Trustee. These selections are natural and proper provided the individual selected possesses the qualities described above. In situations in which a spouse, partner, or other family member should not or cannot be appointed, then the circle of one’s friends should be examined to identify suitable candidates based on the qualities described above. It is a common courtesy to ask the permission of a candidate before they are named in your Will as their prior consent to act as an Estate Trustee will make it less likely that they will refuse to act when required. Most Estate lawyers will, if requested, agree to act as an Estate Trustee on terms and compensation similar to the appointment of a spouse, partner, family member, or friend. In special circumstances (such as high-conflict families, complicated Estate assets, and where a long-term trust is established in a Will), the Estate services of a trust company may be preferred. An experienced Estate lawyer will help you make the best selection in your personal circumstances.

The duties and responsibilities of an Estate Trustee include locating and examining the last Will; making or assisting with funeral arrangements; working with a lawyer to understand the deceased’s wishes as specified in the Will; communicating with all persons or parties who have an interest or share in the Estate; and making application to be appointed as an Estate Trustee by the Ontario Superior Court to be authorized to make the payments and distributions under the Will. An Estate Trustee must become familiar with the deceased’s assets and property and take all necessary steps to protect the same. If the deceased had an interest in a business, then the Estate Trustee will have the responsibility to participate in the continuance of its operation. The taking of an inventory of cash, securities, jewellery and other valuables, and real estate, and obtaining the particulars of life insurance policies is a fundamental task of an Estate Trustee. Such an inventory (and values for property items) will be the basis for the filing of income tax returns and reports to beneficiaries. Investigations as to the deceased's pension entitlements must be undertaken. If the deceased owned or had an interest in a home at the time of death, then the Estate Trustee is responsible for ensuring the home’s protection and that it is properly insured. In the case of special property (such as jewellery, special collections, recreational properties, commercial property, and farms), the Estate Trustee will arrange for proper values of these items. In addition, the Estate Trustee will determine the balances owing on any mortgages, loans, lines of credit, and other indebtedness of the deceased at the time of death. The Estate should not be distributed until the proper income tax returns are filed, assessed, and a final clearance from the Canada Revenue Agency is obtained. A premature distribution of Estate property exposes the Estate Trustee to the risk of personal liability to the Canada Revenue Agency and the beneficiaries of the Estate. An Estate lawyer will assist the Estate Trustee with any and all of these tasks and responsibilities. Most Estate lawyers offer a one-hour free consultation during which the Will can be reviewed and a list of the Estate Trustee’s duties and responsibilities made.

Michael A. Menear
Menear Worrad & Associates
100 Fullarton Street
London, Ontario N6A 1K1
Phone: (519) 672-7370
Fax: (519) 663-1165
mmenear@menearlaw.com






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