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A Taste of the Estate Administration Process

What is the Estate?

When a person passes away, all assets that the individual leaves behind may be referred to as that person’s “estate”. Generally, this could include bank accounts, investments, cash, jewelry, cars, business interests and the like. Sometimes the deceased owns a fractional interest in the asset (such as a part of a company) in which case, the fraction would also be considered a part of their estate.

Upon passing of such individual, the main question that arises is whether there exists a Will or not. In the event that the deceased had a Last Will and Testament, the terms of the Will must be reviewed in order to determine, along with various other items, who would manage the estate and who are the intended beneficiaries.

In the event that there is no Will, Ontario law known as the Succession Law Reform Act sets out the rules and priorities in order to determine who can be a beneficiary of the estate.

During the estate administration process, the Estate Trustee often retains a Lawyer to assist with the process. It is to be noted that there exists a clear distinction between the role of the Lawyer and the Estate Trustee as it is the Estate Trustee who is responsible for decision-making related to the estate, even where a Lawyer has been retained for assistance.

 

Other things that need to be considered and are often discussed during the initial stages (in no particular order) of the administration are:

  • Whether there are particular “wishes” in the Will related to the funeral and or organ donations?
  • Are there any U.S. tax consequences as of death (where the deceased had U.S. assets and or citizenship or other connection).
  • Consider if there may be any support obligations (stepchildren)?
  • Are there non-resident beneficiaries?
  • Do other documents (separation or shareholders agreements or orders) exist that need to be reviewed?
  • Gather details of the assets including, but not limited to, RRSPs, RRIFs, GICs, Tax returns, insurance policies etc.
  • Provide notice of death to family members or others who have an interest in the estate (such as those who have a business interest).
  • Identify the deceased’s advisors such as lawyer, accountant, financial planner, who may possess important information.
  • Consider and advise of any conflicts (beneficiary disputes; sibling rivalry) that exist with respect to the estate and the terms of the Will.
  • Understand and be aware of the entitlements under the Family Law Act along with the limitation period.
  • Understand what the role of the Estate Trustee involves, the commitment, the liability that exists along with a complete understanding of their duties and responsibilities prior to acting.
  • Realize that prior to acting, an individual may be able to renounce his or her office prior to taking action in relation to the estate.
  • Understand the level of diligence required and the need for record-keeping and accounting with respect to the estate.
  • Secure and preserve assets including insuring over assets depending on the situation.
  • In light of recent case law, consider whether there any joint assets that give rise to a resulting trust?
  • Locate and obtain listing of safety deposit boxes.
  • Understand the particulars of what constitutes a Graduated Rate Estate.
  • Consider whether there are any potential dependent claims that could arise under the Succession Law Reform Act
  • Consider whether there are beneficiaries that may be missing and need to be located?
  • If necessary, understand the priority that arises under the Succession Law Reform Act for an intestate estate (without a Will).
  • Gain access to information about the liabilities of the estate and arrange for payments.
  • Close accounts, cards, and advise the appropriate parties and institutions of death.
  • Consider whether certain assets need to be insured over.
  • Understand that accounting, investment and tax advisors may also need to be retained.
  • Know details and amount of the “probate” tax payable
  • Be aware of the estate information return requirements of the estate – due within 90 days of issuance of the Certificate of Appointment of Estate Trustee

And many more…

There are various scenarios and steps that may arise as a consequence of death. The estate administration process is a complex process involving an understanding of the role of an Estate Trustee as well as the limitations and liability that are associated. Please be sure to contact an estate lawyer to gain a better understanding in relation to your particular situation.

 

The above serves as general information and is not intended to be thorough in nature and is not to be relied upon as legal advice.

Joining Assets with Children

We recently came across an individual asking whether he could avoid the cost of preparing a Will by simply ‘joining’ all his assets with his children. Perhaps you may also have someone give you such an idea in order to skip the preparation of a Will because it’s “easier and cheaper to just join your accounts” than to visit the lawyer’s office.  

Interesting but misinformed.  

While joint ownership is often used as an estate planning tool in order to have assets transferred to the surviving owner (or simply for the sake of convenience) and avoiding the dreaded probate tax upon death, it has to be thought through to avoid unintended results.

Some questions that should be crossing your mind are:

  • Who is this account to be shared with?
  • Is the co-owner of the account one of your adult children?
  • What type of account is it (registered, non-registered etc.)?
  • Are there rollovers available so that there isn’t unnecessary tax burden on the estate?
  • Do you know the tax consequences that arise as a result of transferring a capital asset into joint ownership? 
  • Is the underlying intention to avoid probate tax?
  • Is avoiding probate tax worth the loss of control?
  • Is the true legal and beneficial ownership being transferred?

Some additional considerations may include the following:

In the event of your death, are you certain that Johnny will share equally with your other son, Bobby?  Maybe he will, maybe he won’t. Johnny may be in a financial strife and decide to use the proceeds out of this account thereby cutting Bobby short. What if Johnny’s facing creditor issues? Will creditors now be able to access the account? Do either of them have dependants (children, spouse) and how does all that factor in?

Along with continuous changes in the law, the above are some of the questions one must seek answers to in relation to joining accounts. Other items that require attention when preparing Wills are registered plans, insurance proceeds payable upon death, joint ownership designations, assets owned under tenancy in common etc.

It is always a good idea to speak to a professional and have your situation reviewed. Contact Rabideau Law today and speak to one of our professional Wills and Estates Lawyers.