APPOINTING AN ESTATE TRUSTEE
An Estate Trustee (previously known as an executor or executrix) is the person with the legal authority to administer your estate. If you have a Will, it will usually list at least two Estate Trustees (in the event that one is not mentally capable, has died, or refuses or is unable to act as the trustee).
Administering your estate means carrying out the instructions you have written in your Will. Being an Estate Trustee can take quite a bit of time and involve a lot of paperwork. You should carefully consider who you appoint to this important position. The position requires patience, good judgement and diplomacy. It can also involve collecting, managing and investing assets, paying debts and distributing property and possessions to beneficiaries. The Estate Trustee may have to ensure that certain property is held in trust for a given period of time.
In order to serve, an individual must be at least 18 years of age and of sound mind. Normally, the spouse or an adult child is selected as the Estate Trustee. It is possible for a Testator to appoint two or more people to the position. This may be advantageous if each brings a particular expertise to the role.
If there is no one close to you who can act as your Estate Trustee, you might be able to appoint a professional such as a trust company, accountant, lawyer, or the provincial or territorial Public Trustee (in Ontario, this would be the Office of the Public Guardian and Trustee). The advantages of appointing a professional include permanence (particularly important if trusts are required) and expertise in the administration of estates and accounting. If you are thinking about appointing a professional, make sure that the person or organization is willing to take on the job before you name them in your Will. Also, check to see what their fees will be. In Ontario, a professional might charge 5% of the value of the estate.
The person or organization you decide to appoint as your Estate Trustee should be kept abreast of the location of your Will as well as any changes you may make to it.
An Estate Trustee should commence his or her duties as soon as possible after the death of the Testator. Among other things, the Estate Trustee is responsible for the following:
- Legally responsible for funeral and burial arrangements
- Locating the Will
- Applying for a Certificate of Appointment of Estate Trustee with a Will
- Determining the nature and extent of the Testator's estate and takes steps necessary to protect it (i.e. through insurance)
- Overseeing the operation of any ongoing business interests of the Testator
- Identifying and notifying all beneficiaries of the death and their interest in the estate
- Paying all debts, distributing the estate to beneficiaries and establishing trusts, if any, according to the Will
- Account to beneficiaries and the court regarding the disposition of the Testator's estate
If your chosen estate trustee resides in another jurisdiction, they may be required to provide a bond before granted a Certificate of Appointment of Estate Trustee with a Will. Two personal sureties, who must be Ontario residents, at least 18 years old and are not solicitors, are required for estates that are valued at more than $100,000. An insurer in Ontario who is licensed to write surety and fidelity insurance may also act as a surety, for a fee.
An estate trustee must exercise care, diligence and reasonable prudence in carrying out his or her duties. Ultimately, the Estate Trustee is accountable to beneficiaries of the estate.
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