LAW RESOURCES & NEWS

CHOOSING AN ESTATE TRUSTEE

Last Will Testament

When planning your will, one of the most important decisions you will make is who to appoint as your estate trustee (commonly referred to as the “Executor” of the estate). Many testators select a trusted family member or friend to fill this role. However, some individuals do choose to instead appoint a third party such as a trust company, or a lawyer. Today we will review a few questions that testators could ask themselves when making this decision.

Are they likely to be able to handle the job?

The Estate Trustee is the person who is tasked with carrying out the directions in the testator’s will. They will be responsible for, among other things:

  • funeral arrangements;
  • determining, locating, and liquidating (if appropriate) the assets of the estate;
  • satisfying the debts of the estate, including paying taxes;
  • applying for a Certificate of Appointment (i.e. “probate”), if necessary;
  • reporting to and providing financial disclosure to the beneficiaries;
  • effecting all of the gifts under the will.

You should select someone who you feel has the skills and ability to take on these kinds of tasks. Your Estate Trustee is likely to be very busy! In addition to financial and organizational skills, your Estate Trustee will likely have to physically attend at the funeral home, lawyer’s office, various financial institutions, and your own home (and likely many more places). You should consider whether all of this “running around” is beyond the capability of the person you choose.

How will the relationship/family dynamics in play affect my estate?

Often parents feel compelled to appoint all of their children (or multiple other individuals) as joint Estate Trustees so as not to show favouritism. This can lead to a very difficult administration if the appointees cannot get along. Even if the appointees are able to work together, the logistics involved in having multiple joint estate trustees can be challenging – they all must attend at the lawyer’s office and the various financial institutions for decisions to be made.

Where does my Estate Trustee live?

Ideally, the person(s) you select should be a resident of Ontario. It is customary for the court to require that an out of province Estate Trustee post a bond in order to be granted a Certificate of Appointment. It is possible to have this requirement set aside, but it is not guaranteed. Practically, the Estate Trustee will also likely have to travel to the testator’s city of residence on multiple occasions in order to administer the estate, causing delay and extra expense.

Choosing an Estate Trustee can be a difficult decision. While some testators view the appointment of an Estate Trustee as akin to a gift, in reality it is often a demanding and stressful job. Thinking through the issues described here can help inform your choice, but it is ultimately the testator’s decision to make.

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About the Author

EMMA O'DONNELL

EMMA O'DONNELL

Emma is a lawyer in Burlington who is proud to serve her local community with real estate, business law and wills & estates expertise.

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