Feb 27, 2023
Frequently asked questions about probate in Ontario; answered.
Get the answers you need about probate in Ontario. Our comprehensive FAQ guide has everything you need to know.
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An estate executor has a lot of responsibility when it comes to settling an estate properly. They must ensure that all legal and financial matters are properly taken care, that the deceased’s last wishes are carried out, and that beneficiaries receive their inheritance. This role affords executors a certain amount of power: They have access to the entire estate, including the deceased’s financial records and personal items, and they have the authority to sell parts of the estate if it’s necessary to pay off any outstanding debts before the estate is closed.
However, one thing an executor cannot do is decide how the inheritance is distributed. An executor is bound to follow the instructions laid out in the will. If there is no will, they have a duty to carry out the distribution of the inheritance according to the succession laws of the jurisdiction where the deceased lived.
The responsibilities of an executor all revolve around respecting the deceased’s wishes, carrying out the instructions in their will, and acting in the estate’s best interest. They have a fiduciary duty toward the estate, meaning that all of their actions must be towards benefiting the estate. These responsibilities include:
Locating the will and applying for a grant of probate - Ideally, the testator (the creator of the will) and their executor will have discussed where the will can be found once the time comes. Then, the executor must submit the will, along with documents such as a death certificate and an official application for probate, to the relevant probate court in order to have the will validated and receive court authoritzation to carry out their executor duties.
Creating an inventory of assets - Another task is to locate any assets belonging to the estate, create an inventory, and appraise the value of those assets to determine the overall value of the estate. That inventory must be submitted to the probate court.
Another often overlooked responsibility of an executor is maintaining and securing those assets in addition to having them appraised. So if a house forms part of the estate, then the executor is responsible for ensuring that the house remains in good condition and that the mortgage continues to be paid until the asset has gone through probate.
Paying off debts and taxes - An executor must also identify the estate’s liabilities. This means that any outstanding debts, such as mortgages, loans, and credit card debt, need to be paid off by the estate before the inheritance can be distributed. The same goes for any outstanding taxes, such as a final tax return and an estate tax return in cases where the estate has been generating income during probate.
Distributing the inheritance and closing the estate — Once all loose ends have been tied up, an executor ensures that what remains of the estate is distributed to beneficiaries according to the will. If there is no will, the executor must follow the laws of succession in the jurisdiction where the estate is being probated. The executor must also petition the court to formally cflose the estate.
An executor has the right and the responsibility to carry out the instructions of the deceased as they have been set forth in their will. This power is validated by the probate court, which confirms that the executor has been named in the will. The executor then receives letters of testamentary, which confirm that the executor is allowed to act on the estate’s behalf.
As such, an executor has the power to manage the estate’s assets to ensure that they’re well-maintained and safe. This may include arranging pet care or hiring contractors to fix up a house before it goes on the market.
An executor also has the power to liquidate assets and sell property if it’s necessary for paying off any debts the estate may have.
Finally, an executor has the power to distribute what remains of the estate to the beneficiaries. However, the executor cannot independently decide how the estate is distributed. They must follow the instructions in the will or the succession laws of the relevant jurisdiction.
The executor cannot, under any circumstances, change the will. That would be considered tampering and could lead to the removal of the executor from their position. The executor has the responsibility to act in the estate’s, the beneficiaries’, and the deceased’s best interest. A large part of that means honouring the will as the deceased wrote it.
An executor’s responsibilities are very clear. As such, it’s also very clear what they’re not allowed to do. An executor cannot:
Change the will;
Sell assets below market value without first receiving explicit written agreement from beneficiaries;
Mismanage the estate, such as allowing a house to fall into neglect or giving away family heirlooms to anyone apart from their intended beneficiary;
Transfer property from the estate to themselves if they haven’t been named its beneficiary or haven’t bought it at market price;
Try to stop beneficiaries from contesting the will.
An executor of a will does not have the final say when it comes to settling an estate. That power lies with the probate court, which inspects all of the executor’s actions and finally grants them the petition to close the estate once the inheritance has been distributed.
Being an executor is no walk in the park. If you’re currently struggling with the responsibilities that come with settling an estate, you’re not alone. We’re here to empower estate executors with the information and support they need to effectively settle an estate, saving hours of work and thousands of dollars in fees in the process. Get in touch for a free consultation and find out how we can help.
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