I have previously written on what happens
when a person dies insolvent, i.e. their debts are greater than the value of their assets.
I am now switching *a bit*. Over *the next few weeks*, I am going to be
writing a series of blogs and vlogs to explain why I believe that *a licensed insolvency
trustee* (formerly called a bankruptcy trustee) is the professional you should be thinking
of making the executor of a deceased estate and recording it in your will.
I will show how, based on the knowledge and expertise possessed by *licensed insolvency
trustees*, it makes them the perfect candidate to serve as *an executor* of a deceased estate
that is rich with assets. I caution that I and my firm are not lawyers,
and I am by no means providing in this and upcoming Brandon’s Blogs advice on
*wills or estate planning matters*. For that, you must consult *your lawyer*.
In this blog, I wish to set the stage by going over some basics when it comes to a deceased
estate. *In Ontario*, *an estate trustee* (also known
as the executor or executrix) is the only individual with the lawful authority to handle
or disperse an estate. When an individual dies they might leave items,
property, real estate, cash and investments and *other possessions* which is called their
estate. *Probate* is a treatment to ask the court
to: provide an individual with the authority to
work as the estate trustee of *an estate*; verify the authority of an individual acting
as the estate trustee named in the deceased’s will; and
officially accept that the deceased’s will is their legitimate last will.
You can apply for probate in *the Ontario Superior Court of Justice*.
If *your probate application* succeeds, the court will provide a Certificate of Appointment
of Estate Trustee, which is evidence that an individual has the lawful authority to
manage the estate. *A probate Certificate is not needed* in every
situation for a deceased estate. An application for *a probate Certificate*
is normally made if: the departed individual passed away without
a will *the deceased’s* will does not show an estate
trustee a financial institution desires evidence of
an individual’s lawful authority to get *the cash* or financial investments of the deceased
the estate’s properties consist of real estate which does not pass to an individual by right
of survivorship there is a disagreement about who ought to
be the estate trustee there is a conflict or possible conflict about
the legitimacy of the will; or some of the beneficiaries are unable to supply
*legal consent*. What should *the estate trustee’s first
steps be*? Here is where the actions the estate trustee
should immediately take are almost the same as those taken by a licensed insolvency trustee
Obtain the will and *financial records* *Have Proof of authority*
Take possession and control of the assets, make an inventory and establish market values
*Insurance and bonding* In general terms, an estate trustee acting
on behalf of baneficiaries, just like a licensed insolvency trustee acting on behalf of stakeholders,
has the following responsibilities: be *impartial* amongst beneficiaries
act in *a commercially reasonable way* to act in the best interests of *the beneficiaries*
not make decisions for *individual gain* keep *accurate records* of all decisions made
and actions and activities; and *acting* in accordance with the will if one
exists If you have any questions about a deceased
estate and the need for an estate trustee, whether it is solvent or insolvent, contact
*the Ira Smith Team*. In my next blog, I am going to write about
a topic that is becoming more and more common in deceased estates; picking the right estate trustee.