Estate Administration - First Steps
Estate Administration: First Steps
1. Identifying Conflicts
Make sure you know how many people you are representing and whether you need a joint retainer. You must also Identify the capacities in which your clients are acting and in which you’re representing them. It is important to delineate the difference between the personal capacity of an individual, and their other capacities, including spouse, beneficiary, creditor, estate trustee, guardian, and trustee.
It is also important to identify what aspect of your client's issue you are giving advice on. For example, executor’s counsel cannot give advice to a spouse regarding their spousal rights – they must proceed to obtain this advice independently.
If your client is named as Estate Trustee, explain that they can either accept their appointment or renounce. However, once they start acting as an executor, they won’t be able to renounce and can only step down as executor if a Court removes them.
2. Importance of the Original Will
The original Will is necessary to proceed with the administration of the estate. Even a notarial copy is not sufficient. The reason for this is that, if the Will was last in the possession of the Testator and it can no longer be found, the presumption is that the Testator has revoked the Will.
3. Releasing the Original Will
If you are holding the original Will, you must release it to the appointed executor under the Will. Keep in mind that there might be multiple executors and alternate executors. If there are multiple executors, consider getting a direction from all of the executors before releasing the Will. Before releasing the original Will, obtain a copy of the death certificate of the Testator and ask the executor for their ID to confirm their identity.
If it’s a contentious situation and you have notice of the Will being challenged, you might be hesitant to release the original Will.
4. Finding the Original Will
When trying to locate an original Will, you can begin by suggesting to your client(s) the typical places where Wills are often kept. You can also advertise for the original Will. There are some good technologies out there that can assist in this regard, such as Notice Connect.
If all else fails, you can bring a Lost Will Application under Rule 75. This allows you to apply to the Court for a declaration that the last true copy of the Last Will and Testament has been lost and to identify the chain of custody of the Will. The Court can then grant probate on the basis of a copy of the Will.
5. Retainer Issues
The retainer should identify in what capacity the client is acting in (e.g. as estate trustee), the fees, whether it is a joint retainer, and the scope of the legal work you will be doing. You should also review the difference between executor compensation and legal fees, a subject that we will be discussing at a later E-States webinar.
6. Review the Will
Confirm the validity of the Will and review the appointments under the Will – are there conditions to the appointments or residency issues?
Review the dispositive provisions and the beneficiaries, including minors or incapable persons.
It might also be a good idea to create a family tree for the Testator. This is especially crucial if there is an intestacy.
- Funeral and burial arrangements
- Make provisions for the immediate needs of any dependants
- Dispose of perishable assets
- Confirm the guardianship of any minors
- Arrange for the care of any pets
Determine the nature and value of the Testator's assets and debts, as well as their ownership – for example, are there any joint assets?
Be aware of any special exemptions, such as the Land Titles Qualified.
Determine whether probate is necessary and review the benefits of probate even when it is not necessary.
Secure and protect all other assets including business interests and rental properties.
Review insurance coverage and obtain increased or additional coverage for the assets where necessary.
Review risky assets, equities, etc. Ian recommends liquidating the portfolio as soon as possible, even though banks might resist this.
Pitfalls in Estate Administration
- Disputes among estate trustees
- Rushing to probate
- Not identifying spousal/dependant claims
- Not securing assets
- Missing filling dates
- Compensation for lawyer/ET
If you want to watch the full recording of the webinar you can do so here.