/ PracticeConsiderations

Avoiding Common Errors When Applying for Probate

Obtaining a certificate of appointment of estate trustee with or without a will can be a process. As many estate lawyers know, it is not often that an application is approved upon first submission, in fact most are returned for corrections.

With that in mind, I have compiled a list of considerations in order to help you avoid common errors when applying for a certificate as well as some guidelines when advising potential clients who are looking to apply as an estate trustee.

1. Set the Scope of the Retainer

  • Be clear about what services you are providing as part of the estate administration process (for example, that you are not providing tax or investment advice).
  • Where there is more than one estate trustee named in the Will, be sure to discuss rules and responsibilities around joint retainers (in particular that information received from any estate trustee as it relates to the estate cannot be kept confidential).
  • Be clear with the potential estate trustee about timeline and determine whether there is any urgency (for example, a beneficiary is in urgent financial need).
  • Communicate the roles and responsibilities of an estate trustee (such as their duty to act in the best interest of the estate).

2. Limitation Periods and Other Deadlines

Identify potential limitation periods depending on the nature of the Estate and the responsibilities of the estate trustee and record it in your tickler system (for example, an application for dependent support must be brought within 6 months after the certificate has been issued or a T3 tax return must be filed within 90 days after the end of the tax year of the estate).

3. Inventory of the Estate

Assemble information regarding the assets and liabilities of the Estate such as assets passing both through and outside the Estate so that the estate trustee can ensure that everything has been claimed and transferred to the person entitled to it once the Certificate has been obtained.

4. Prepare the Application

  • Where there is a minor beneficiary or mentally incapable person, ensure that you are serving the Office of the Children’s Lawyer or the Office of the Public Guardian and Trustee.
  • Obtain the necessary consents and revocations from those entitled to the Estate.
  • Determine if there are taxes owing under the Estate Administration Tax and remit same or provide the required undertaking.

Once the certificate has been obtained it would be wise to advise your client in writing about their responsibilities with respect to the Estate. Some key responsibilities you should address include:

  • Open an estate bank account;
  • Locate and empty the safety deposit box;
  • Distribute and dispose of personal effects;
  • Transfer real estate and cancel any insurance on real estate or vehicles;
  • Pay any debts of the Estate such as funeral expenses;
  • Advertise for creditors through a trusted platform like NoticeConnect;
  • If there are any claims against the Estate, determine the validity of those claims;
  • File the necessary Estate Information Return with the Ministry of Revenue; and
  • File the necessary taxes and obtain a clearance certificate for income tax owing to date of death and for the estate if necessary.