Probating an Estate

If you have been appointed Executor in the Will of a person who has just died there are a wide range of obligations which you undertake if you accept the position of Executor. However, you may refuse to act as Executor by renouncing your Executorship and signing the appropriate documents so that the alternate Executor may act or so that some other person may apply for Letters of Administration.
 
If you choose to act as Executor, your duties include the following:
 
1. Locate and review the Will and discuss it with the estate solicitor.
 
2. Attend to the funeral and other family or personal matters where required.

3. Obtain the required number of Death Certificates to transfer joint tenancy properties and to claim insurance benefits. 

4. Check to see if survivors require immediate funds for living expenses. Banks will often release funds from the deceaseds account if urgently required by the survivors.
 
5. Peruse important papers of the deceased including bank statements, trust company statements, safety deposit box (attend at bank to obtain listing of the box with a bank officer), securities in safekeeping with the bank, stocks and bonds.
 
6. Review insurance coverages and ensure adequate insurance is in place.
 
7. Compile a list of assets and obtain values.
 
8. Check for outstanding mortgages, leases, agreements for sale, etc. that may require ongoing payment or attention.
 
9. Obtain serial number and registration particulars of any automobiles.
 
10. Compile a list of all debts including funeral accounts.
 
11. Obtain the names and addresses of all beneficiaries and children of the deceased or next of kin of the deceased.
 
12. Redirect mail, cancel credit cards and subscriptions.
 
13. Notify and return pension cheques, government benefit I.D. cards, etc.

14. Notify banks, credit unions, trust companies and other deposit sources.

15. Apply for death benefits, including CPP, if applicable
 
16. Notify pension plans and life insurance agents and complete claims to arrange settlements.
 
 
17. Take the Will and all of the above information to a lawyer to instruct him or her to obtain Letters Probate to give you the power to deal with the estate and assets and distribute the estate according to the Will.
 
18. The lawyer will do the Wills Search, prepare the Affidavits and documents required to be signed and will make application to the Court for a grant of Letters Probate, mailing Notices required with a copy of the Will to the beneficiaries and next of kin.
 
19. Upon receiving Letters Probate, gather in all funds of the estate, dispose of real estate and securities as directed in the Will.
 
20. Advertise for creditors and review creditor's claim to confirm or reject them.
 
21. Collect any outstanding amounts due to the deceased and pay estate debts.
 
22. Transfer and distribute to the appropriate beneficiaries any household effects or personal effects pursuant to the Will or liquidate the same if applicable.
 
23. Attend to filing income tax returns and obtain the tax clearance certificate prior to distribution.
 
24. When all assets have been liquidated, prepare an accounting of monies received and monies paid out together with the proposed final distribution. and have it distributed to all beneficiaries to be executed together with a release of any claims against you as Executor.
 
25. Upon receipt of all executed releases, approved Executor's accounts and income tax clearance certificate, distribute the funds to the beneficiaries.
 
Pursuant to the terms of the Wills Variation Act, a spouse or child of the deceased may make an application to vary the Will if they have not been properly provided for under the Will. Such an application must be made within six months of the date Letters Probate are granted. You are therefore restricted from distributing the estate until the six month limitation period has expired.
 
Unless the Will otherwise provides, the Executor is entitled to charge Executor's fees of up to 5% of the gross value of the estate plus reimbursement for all out of pocket expenses, but such fees must be approved by the beneficiaries or in the absence of approval by the beneficiaries, by the Court.
 
If the estate is very small, or consists of assets which can be dealt with without Letters Probate, it may be possible to distribute the assets without obtaining Letters Probate. The advice of a lawyer should be sought to ensure that this is the correct course of action in the circumstances.
 
In the event the deceased died without a Will, the Executor's duties are basically the same except that the Executor is called an Administrator and must be appointed by the Court with the consent of other persons entitled to apply. If there is no Will, you are restricted from distributing the estate for one full year from the date of death.
 
Because there can sometimes be problems in obtaining the consents of other persons entitled to apply for Administration, and because of the additional delays involved where there is not a Will, it is strongly advised that you have a Will to save time, trouble and expenses for those that are left behind.
 
This article is not legal advice and a lawyer should be consulted on any specific case.