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Posts Categorized: Advice to Executors and Trustees
32 ResultsI do not like the estate trustee/executor – can I get rid of them?
Can you apply for the removal of the estate trustee? Section 37(3) of the Trustee Act provides the court with legislative authority to grant an order removing an estate trustee upon the application of: -any executor or administrator desiring to be relieved from the duties of the office, or -any executor or administrator complaining of…read more
Does a Joint Bank Account Go to the Survivor or the Estate?
The Law of Resulting Trusts What happens to jointly owned assets following the death of one of the joint owners? In the normal course, full ownership passes to the surviving owner.[1] However, this result may seem unfair where only one of the owners paid for the property or, in the case of bank accounts, only…read more
My Sister Died Without a Will – What Happens Now?
A will allows an individual to decide in advance who will administer her estate and who will receive her assets when she dies. Testamentary freedom is guaranteed to all Canadians, meaning we are free to choose who will benefit from our estates: family members, friends, pets, charities, or our favourite sports team. (Note that most…read more
How Much Compensation Is An Estate Executor Entitled To?
After being appointed as estate trustee or executor of an estate, it can be unclear how much compensation can be claimed for administering the estate. In addition, beneficiaries often object to the amount claimed. How is executor compensation determined? In some cases, the will itself outlines the amount of compensation that may be claimed or…read more
Clash of the Limitation Periods
The Limitations Act, 2002, SO 2002, c 24, Sch B, brought order and clarity to limitation periods in Ontario. However, the Limitations Act did not displace all existing limitation periods established by statute. Several carve-outs which are particularly relevant to estates litigators includes the Real Property Limitations Act, RSO 1990, c L.15 and s. 38(3)…read more
The Tax Clearance Certificate, Demystified
As legal representative of an estate, the estate trustee’s obligations are varied. One of their duties is to bring the deceased’s taxes up to date and to file all estate tax returns before the estate is wound up. To exonerate their potential liability to outstanding tax issues pursuant to subsection 159(3)(a) of the Income Tax…read more
To Remove or Not to Remove … That is the Question
Estates tell a million stories and the case of Ford v Mazman, 2019 ONSC 542, is just one of them. Mary died on April 3, 2017. Mary’s 2004 Will named her two nieces, Laura and Carleen, as sole beneficiaries. Mary appointed her close friend, Seta, as her estate trustee/executor. Laura had travelled to Ontario from…read more
Not So Fast – Who Controls the Body?
“He knows where the bodies are buried” is a throwaway line from Orson Wells’ cinematic masterpiece, Citizen Kane. That line soon took on a life of its own and entered the cultural vernacular. In the world of estates, a more frequent problem is not finding the bodies but deciding where to bury the bodies. In…read more
Insolvent and Bankrupt Estates
Estate trustees and beneficiaries often focus on the positive – the many and varied assets of an estate which will soon be distributed to the beneficiaries. It is only after the estate administration is underway that the full financial picture emerges – an estate that appeared flush may actually have more debts than there are…read more
Limitation Period Precludes Motion to Set Aside Releases
In the usual litigation battle, a release operates as a “shield” in the sense that if a beneficiary sues an estate trustee, the estate trustee can use the release as a defence. In Re: Sheard, the estate trustees were able to use signed releases to preclude them from having to pass their accounts for the period…read more