Our partner Holly LeValliant gave a talk on in terrorem clauses at the Six Minute Estate Lawyer event held by the Law Society on April 29th. In plain English, in terrorem clauses are stipulations in Wills that make bequests conditional upon the recipient not taking certain actions. They are most often used to prevent beneficiaries from challenging … Continued
Compassionate & Trusted Toronto Estate Lawyers Assisting Executors with Their Duties
The death of a family member or close friend is traumatizing and overwhelming. The loss can be made even more difficult if you have been named an executor, as there are a number of legal matters that must be immediately addressed in order to protect the estate and manage risk.
The experienced and knowledgeable estate lawyers at Eisen Law in Toronto can assist you with carrying out your executor duties. Through our personal and compassionate approach, we help ease stress and provide peace of mind for individuals going through the often daunting probate or estate administration process.
Probate in Ontario
Probate is the formal court process that legally confirms an executor’s authority to act on behalf of the deceased. Through the probate process, the court will a) approve the will of a testator and formally recognize it as their last will and testament and b) appoint the person who will act as executor.
When is Probate Required?
Probate is not always required, and not all executors go through the probate process. However, probate should be undertaken where:
- Court approval is needed to validate the will or the chosen executor because of a dispute about who it should be
- Where proof of an executor’s authority is required for third parties, such as banks
- Where the estate includes a land transfer, as land registry offices will require probate to transfer land from the deceased’s name into the name of someone else
How Much Will Probate Cost?
Ontario does not impose estate taxes, “death taxes”, or succession fees, but there are fees associated with probate. Probate fees in Ontario are $250 for the first $50,000 of the estate, and $15 for each $1000 thereafter, with no upper limit. Probate costs come out of the estate, before any assets are distributed to the beneficiaries.
Probate fees can be significantly reduced, and sometimes avoided altogether through proactive advanced planning by skilled estates lawyers.
Estate Administration in Ontario
When a person dies, all of their assets and property (i.e. their estate) must be organized and distributed under the terms of that person’s will. Where there is no valid will, the estate will be distributed based on “intestacy rules” which lays out a strict hierarchy of who is entitled to what, beginning with the deceased’s closest living relatives.
Estate Administration Where There is a Valid Will
A will names the individual(s) responsible for overseeing (i.e. administering) the winding up of the testator’s estate. This individual is known as the executor. There can be more than one executor. The named executor(s) must apply to the court for a Certificate of Appointment as Estate Trustee with a Will. Once the court is satisfied that the will is valid, it will issue the certificate which confirms the executor’s authority to administer the will.
Estate Administration Where There is No Will
Where there is no will, someone (usually the surviving spouse) must be appointed by the court to administer and distribute the estate as executor. If there is no spouse, or is the spouse is unable or unwilling to act in this capacity, another family member can apply to do so. If there are no eligible family members, another person may apply to become executor, for instance a close friend, a lawyer, or the Public Guardian and Trustee. The court will grant a Certificate of Appointment of Estate Trustee without a Will, which gives the designated individual the authority to manage and distribute the estate in accordance with intestacy rules.
More often than not, an executor has never acted in such a capacity and does not necessarily understand the importance of this function, as well as any risks that they face.
Most importantly, an executor owes a fiduciary duty to the beneficiary/beneficiaries of the estate they are administering. This means the decisions and actions of an executor are all subject to a very high legal standard. An executor must act with integrity and in good faith at all times, and make all decisions in the best interest of the beneficiaries. Any violation of this fiduciary duty will have serious legal and financial consequences for the executor.
Contact the Toronto Estate Lawyers at Eisen Law for Guidance with Probate and Estate Administration
At Eisen Law, our skilled and knowledgeable estate lawyers can help with all aspects of probate and estate administration. Call us at 416-591-9997 or contact us online to set up a consultation with one of our dedicated and experienced lawyers.
Estates & Trusts
Advocating for Both Estate Trustees and Beneficiaries in Estates
Providing the Management of Care for Those Who Can’t Care for Themselves
Powers of Attorney
Ensuring Proper Care and Governance for Your Loved Ones
Navigating you through all your options, legal rights and obligations
Probate & Estate Administration
Assisting with carrying out duties for executors
Mediation Can Dramatically Reduce Time, Cost, and Stress
Eisen Law provides the experience, expertise and compassion needed to navigate through a difficult journey.
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