Estate Administration in Ontario
Estate administration can be a complicated and time consuming process. The person administering an estate must ensure that he or she adheres to the legal requirements of the process. One of the governing pieces of legislation in Ontario, is the Estates Administration Act.
Even if an estate seems relatively simple to administer, it is possible for the administrator to make mistakes and to expose himself or herself to estate litigation. Mr. Ticker is an experienced estate litigation lawyer who can advise executors and trustees on how to protect themselves from liability when administering an estate.
Estate administration and probate
One of the crucial steps in estate administration is probate. Probate is a verification by the Court (usually a Judge), that the will in place is valid. Probate also verifies that the executors or trustees appointed have the authority to act and administer the estate. If the will is approved, the appointment of the executor or trustee is confirmed by the Court.
Probate is necessary in various situations depending on the nature of the estate. For example, some institutions such as banks may not release funds held in bank accounts to the executor or trustee for distribution until the will is probated. If probate does not occur in a timely manner, estate administration may be delayed.
Probate also protects the executor or the trustee administering the estate. If a will is probated, the representative distributing the funds of the state is protected from personal liability, if a subsequent will is discovered and assets have been distributed.
There are many instances when the testator (person making the will), may attempt to avoid probate fees (these fees are actually a tax in Ontario called the estate administration tax). For example, a testator may decide to make his or her adult children joint tenants on a bank account.
This may be done to avoid estate administration tax (0.5% on the first $50,000.00 of the estate and 1.5% on the amount over $50,000.00) which is payable only if the will is probated. The idea is that the bank account will pass by way of survivorship outside of the will and probate fees will be avoided.
However, the Supreme Court of Canada in the case of Pecore v. Pecore, 2007 SCC 17 held that there is a presumption that all joint accounts held between a parent and an adult child do not automatically pass to the child on the death of the parent. Rather, there is a presumption that the account is being held in trust for the beneficiaries of the estate. This presumption applies unless adequate evidence is presented to rebut the presumption, in this case the account will go to the child by way of survivorship.
Estate planning and estate administration should be done with advice from an experienced estate lawyer. Retaining an experienced estate litigation counsel is important in creating practical and successful estate administration strategies. Mr. Charles Ticker has over 35 years of experience in estate litigation and estate administration matters. He can assist you with prudent and practical advice.
The information on this website is not legal advice. It is for informative purposes only. To schedule an appointment, call Mr. Ticker at: 1-866-677-7746. A lawyer can only be retained after a consultation where all the details of the matter and retainer are discussed.