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How An Estate Lawyer Can Help If You Are An Executor Or Beneficiary Of A Will

A Newmarket Estate Lawyer Helps With Estate Administration

With a loved one’s passing comes the sometimes daunting task of sorting out the terms of the Will and dealing with the deceased’s finances. If you have been named the executor (a.k.a. estate trustee), you will want to ensure you understand your rights and responsibilities, how to determine the applicable probate fees (i.e., estate administration tax) and that all obligations have been met before distributing the assets. If you are a beneficiary, you will want to understand your entitlement under the Will and by law, and that you receive your fair entitlement. In fact, there are many ways listed here in which an estates lawyer can assist you in the administration of a Will, which can be a complex matter.

Professionally Assist With Estate Administration

An executor needs to accurately ascertain which assets form part of the estate and which property is excluded from a contesting spouse. With the help of an estates lawyer, you can determine the excluded property, such as any: gifts or inheritance, life insurance or insurance settlements, provided these were received during the marriage and kept separately. Also, some property will fall outside of the estate, such as jointly owned property, assets where beneficiaries were named (e.g., life insurance, RRSPs, pension), and existing inter vivos trusts.

It is an executor’s obligation to administer assets of the estate to beneficiaries. However, before this can happen, any debts owing must be paid out of the estate.

As an executor of an estate, it is extremely important to review the estate with a lawyer to ascertain whether any debts exist, and to ensure that these are paid before any assets are distributed to beneficiaries. An executor can become personally liable for the debts of the estate in the event that he or she disposes of, or distributes, the assets of the estate before paying the estate’s creditors.

In another vein, an estate may be owed monies, and an executor may decide to pursue legal action in order to recoup monies for the estate. This again is a very tricky decision that should be pursued only under the advice of a lawyer. An executor may be personally liable for the legal costs of such an action if unsuccessful.

Challenge Or Defend The Validity Of The Will

While the terms of a Will written in clear and unambiguous language are generally to be honoured, there are times when the validity of a Will is challenged. For example, if there any uncertainty about the testator’s testamentary capacity at the time of making the Will, suspicious circumstances, or undue influence or fraud, estate litigation can quickly ensue.

Make A Statutory Claim

Sometimes it happens where a testator (the deceased) had a legal obligation to support his or her financial dependents (e.g., the deceased’s spouse and minor children) and failed to do so. The legal representatives of those dependents can make an application to the court for an order to vary the estate entitlement pursuant the Family Law Act, the Dependents Relief Act or the Succession Law Reform Act, depending on the situation.

In Poitras Estate v. Poitras, 2016 ONSC 5049 (CanLII), for example, the Court found that the deceased had not made adequate provisions for his wife, and ordered that she be paid an additional lump sum of $85,000 from the estate. The court took into account many factors in determining the amount of the lump sum to be paid, including her present ability to support herself, and whether there was a risk that would be unable to support herself in the face of future unascertainable expenses and care needs.

Challenge Or Defend The Executor’s Conduct

Sometimes there are disputes about how the executor managed the estate and why there are few assets remaining after all debts have been paid. It can happen where an executor knowingly or unknowingly mismanages the estate administration. In an old but cautionary Ontario Court of Appeal decision of Commander Leasing Corp. Ltd. V. Aiyede, 1983 CanLII 1649 (ON CA), for example, an executor was held personally liable to for the deceased’s rent arrears when she disregarded this debt and proceeded to distribute the estate’s assets to its beneficiaries.

By law, all beneficiaries are entitled to a reasonably timely full accounting of the estate, and for the estate to be administered in a reasonable time (of at least one year). However, executors are not always well-apprised of their obligations as executors. In Pascale v. Stark, 2015 ONSC 956 (CanLII), the executors estate applied to the Court for an order entitling them to legal costs associated with the complex administration of the estate; the deceased was administrating an estate when she died, which her executors’ then had to take over. While they recovered a substantial portion (over half) of the legal costs associated with administering the estate, the executors were forced to bear some of the costs due to their failure to expeditiously administer the estate and provide an accounting to beneficiaries.

Contact Epstein & Associates, Estate Litigation Lawyers in Richmond Hill, Newmarket or Barrie

Seeking the assistance of a lawyer for the entirely of the estate administration process may help reduce conflict with beneficiaries, ensure that the estate is administered in a timely fashion, and, help in understanding how to recover the legal costs associated with the administration of the estate. If you need an estates lawyer in Newmarket, Richmond Hill, or Barrie, contact us at 1-866-463-2266.