Samantha Prescott and Adam Mason, Estate Lawyers at Mason Poratto-Mason LLP in Sudbury help executors manage their obligations and take the right steps to avoid costly disputes
When a loved one dies, grief tends to arrive in waves, along with paperwork, phone calls, and sudden responsibilities. Then comes the realization that at least one person has been named executor.
Samantha Prescott, an Estate Planning Lawyer at Mason Poratto-Mason LLP in Sudbury says, “For many people that moment is both an honour and a source of panic. Being chosen reflects deep trust, but it also raises immediate questions. What do I do, who do I call, and how long do I have to follow the Will’s instruction.”
Estate administration is the process of gathering and settling everything a deceased person owned and owed. Probate, when required, is the court procedure that confirms the Will’s validity and formally authorizes the executor to act. Probate is an older term, still commonly in use. What the executor (now called an estate trustee) does when “probating” the Estate is actually make an application to the Court for a Certificate of Appointment of Estate Trustee either with or without a Will.
Choosing the right person as executor is crucial. Estate Planning Lawyer, Adam Mason says, “The role demands integrity, organization, and sound judgement. The person designated in the Will should also have the complete trust of the deceased to carry out their wishes once they’ve passed away.”
Behind the Title: What an Executor Really Does
Many people assume the executor has a lot of power. Prescott says, “This perception can create animosity, cause arguments, and create family conflict that results in costly litigation.”
An executor assumes dozens of legal and practical responsibilities. Mason adds, “An executor has a fiduciary duty to the beneficiaries and the estate and a legal obligation to ensure everything is done correctly.” To make it easier, Mason Poratto-Mason LLP has created this Executor Checklist.
What Happens First?
One of the first tasks is locating the original Will and any codicils, as courts and financial institutions require the original to act. You’ll need multiple certified copies of the death certificate. The deceased’s home needs to be secured and valuable assets protected. Unnecessary services should be cancelled.
An Executor’s Legal Role
An executor should read the Will thoroughly and confirm if they will be working with co-executors. Above all, an executor needs to understand their fiduciary duty to act honestly, impartially, and in the best interest of all beneficiaries.
Prescott stresses, “Executors must understand that they can potentially be held liable for mistakes, unpaid taxes, or improper distributions. That’s why we recommend that they contact a lawyer for guidance early in the estate administration process, because what may seem straightforward can become complex.”
Taking Inventory of What’s Owned and Owed
An executor must create a clear financial inventory of the estate beginning with a detailed list of all bank accounts and investments, including balances at the date of death. Real estate owned by the deceased must be identified, as transferring or selling property often requires probate. Vehicles, business interests, and valuable personal property must be listed and valued.
Creditors must be paid before any money is distributed, which is why an executor must gather every outstanding bill, loan, tax obligation, and recurring expense tied to the estate. Mason adds, “It’s only once debts are settled and liabilities resolved that the executor can transfer the balance of the funds to beneficiaries.”
Does the Estate Need Probate?
An executor cannot deal with the money, unless they are on the accounts. Prescott says, “You may need a Certificate of Appointment of Estate Trustee, which confirms legal authority to act on behalf of the estate to third parties. An executor/estate trustee’s authority comes from the Will, but often the bank or other third parties will require confirmation by Certificate of Appointment. It’s a complicated process that involves applying to the court. An executor should hire a lawyer at this point. If probate is required, probate tax needs to be calculated.”
Probate fees or Estate Administration Tax is based on which assets require probate and the value of those assets. Given the complexity and consequences of mistakes, this is where the guidance of an experienced lawyer is invaluable.
Managing Assets & Tax Obligations
A separate estate bank account is needed to ensure all estate funds are properly received, safeguarded, and disbursed. Every transaction must be documented.
The executor must also notify financial institutions, the Canada Revenue Agency, Service Canada, and all relevant insurers and pension administrators as certain benefits may be payable to the estate or named beneficiaries.
The executor must also file the deceased’s final personal income tax return, pay any taxes owing, and it is usually recommended to obtain a CRA Clearance Certificate to confirm with CRA that all outstanding taxes have been paid.
Final Steps
In the final stage of administration, an executor must confirm all debts, taxes, and liabilities have been paid. They must prepare a detailed account of every estate transaction. They should obtain releases from beneficiaries to protect against future claims. Once assets are distributed in accordance with the Will, the estate bank account can be formally closed.
Communication is Key
One of an executor’s most important duties is communicating with beneficiaries. At a time when grief can magnify misunderstandings, clear communication is crucial. Beneficiaries should be formally notified of their entitlements and informed about progress, timelines, and next steps. Mason points out, “The executor has a duty to the beneficiaries to follow the instructions in the Will and the beneficiaries have a right to know what the Will says. Effective communication can prevent unnecessary conflict during an already difficult time.”
Get Legal Advice Early
It’s recommended that executors contact an Estate Lawyer early in the process to ensure deadlines are met, documents properly prepared, and assets distributed in compliance with Ontario law. As Samantha Precott points out, “Many family disputes start with the executor and the Will. Beneficiaries may accuse the executor of not doing their job and a frustrated executor says they don’t know what to do. The best thing to do is call a lawyer immediately because there can be legal consequences if you make mistakes or fail to complete the job properly.”
Experienced lawyers like Samantha Prescott and Adam Mason will guide an executor so that the estate doesn’t end up in costly litigation. Contacting a lawyer early can save tens of thousands of dollars in litigation costs down the road. Prescott says, “Mason Poratto-Mason LLP is here to help people in our community. As lawyers, we are competent and caring and help people in their greatest time of need.”
Contact Samantha Prescott or Adam Mason:
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