Estate administration can seem like a minefield even to the most seasoned practitioners. With every stage comes the risk of a misstep and with it, costly delays, legal disputes, and bitter family feuds. On April 5, 2023, the Ontario Bar Association hosted a virtual program, “Issues in Estate Administration”. The program featured three panels focused on different topics but with the same objective in mind: to provide guidance and solutions to help practitioners navigate the complexities of estate administration.
Panel 1: Common Errors in probate applications
Joining the first panel was Melanie Harvey and Mi Dao from the MAG court services division to discuss common errors in probate applications. The panelists highlighted that many probate applications are rejected on the basis of missing documents, failure to meet service requirements, missing or inconsistent information, and failure to meet email filing requirements. Ms. Harvey and Ms. Dao were joined by Barry Corbin who provided helpful hints to avoid issues and errors. Important among them were to dig deeper with respect to jointly owned accounts before advising the executor as to whether the estate can or should claim complete legal and beneficial ownership, given the presumption of resulting trust that may apply to such accounts, as addressed in Pecore v Pecore, 2007 SCC 17. Some other helpful tips provided by Mr. Corbin include ensuring that the funeral director provides a proof of death certificate showing the deceased’s name exactly as it is on their will and suggesting to the client that the Estate Information Return be prepared straightaway, even though it will not be submitted until later, to ensure nothing goes forgotten.
Panel 2: Issues on Intestacy
Kicking off the second panel was Monique Charlebois who gave a helpful rundown on the issue of missing assets. The tips shared by Ms. Charlebois are likely to be particularly valuable in circumstances where the estate trustee did not know the deceased very well and may not have been familiar with the deceased’s assets, but nevertheless must provide an inventory of those assets. Ms. Charlebois’ tips included reviewing the deceased’s papers and past tax returns and, if that fails, undertaking credit agency file and PPSA searches. The estate trustee would also be well-advised to ensure they redirect the deceased’s mail, as banking institutions are likely to eventually send correspondence that may be of assistance to the estate trustee in ascertaining all of the deceased’s assets. To protect themselves, it was suggested that the estate trustee should keep track of, and note, any and all search efforts, including any fruitless searches.
Peter Neufeld introduced the topic of missing beneficiaries. Executors are required to make a full inquiry to locate all beneficiaries before distributing assets. While statutes such as the Declarations of Death Act, 2002 and the Absentees Act could provide some assistance, they have specific requirements that may be difficult to satisfy. Mr. Neufeld discussed Benjamin Orders, which allow executors to redistribute a missing beneficiary's share while still protecting themselves from a breach of trust claim. Ms. Charlebois then provided an overview of the steps that executors could take to increase their chances of successfully obtaining a Benjamin Order, including conducting genealogical research and obtaining affidavits of those who knew the person in question.
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