What is ....?
1 / an Executor?
An Executor, also known as Administrator or Representative, is an individual designated to fulfill and complete the instructions in your Will. The designated Executor has full legal authority to do so.
It is strongly recommended to name both a Primary Executor who, will be the first person authorized to act on your will and, an Alternate Executor, who can be called upon should the Primary be unavailable, unable or unwilling to act.
2 / a Power of Attorney?
An Attorney (not a lawyer), is an individual designated to act your behalf while you are alive in case you are not available or unable yourself.
It is strongly recommended to name both a Primary Attorney who, will be the first person authorized to act on your behalf and, an Alternate Attorney, who can be called upon should the Primary be unavailable, unable or unwilling to act.
3 / Probate?
Also known in Ontario as “Appointment of Estate Trustee”, probate is formal approval of a Will by the Provincial Court as the valid last Will of the deceased (if there was a Will); and
whether there is a Will or not, appointment of the person who will act as the executor of the estate.
It is not always required but will be if there are questions and conflict about who the executor should be and, the value and distribution of assets to beneficiaries.
4 / Testate and Intestate?
Testate means someone has died leaving a valid Will. Intestate means someone has died without a valid Will.
When ...?
1 / does an Executor have authority to act?
An Executor's authority begins when the person who named them as Executor dies not before.
2 / does a Power of Attorney have authority to act?
An Attorney's authority begins on the date when the POA document is signed and ceases immediately upon death of the person granting authority.
3 / should these documents be created?
A Will and Powers of Attorney should be created when someone reaches legal age of at least 18 and certainly when they begin accumulating any kind of assets. This includes a basic bank account or a even a used vehicle. They are assets which need management and decision making.
How long ...?
1 / does it take to settle an estate?
It takes on an average 12 - 18 months to completely settle an estate. The more complex the estate with more assets and property to distribute and potential income tax implications, the longer it may take to settle an estate.
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If trusts are to be created for minor beneficiaries under age 18 then, it may literally take years to finalize an estate.
2 / does Probate take?
Depending on the Court jurisdiction in Ontario where probate is filed, it may take 3 - 18 months to receive a response to a probate application.
What if ...?
1 / there isn't enough estate money to pay all the bills and debts?
This situation would make the estate insolvent. Consulting a bankruptcy trustee to place the estate in bankruptcy court would be a wise procedure. Debts of a deceased cannot be passed onto an Executor or beneficiary unless they are a co-signor of the debt.
2 / an Executor makes a mistake?
Executors are legally liable for the correct administration of an estate. If someone, say a beneficiary, can demonstrate to provincial court an Executor took erroneous action, whether intentional or not, the Executor can be held financially responsible for mistakes made. Executor insurance can be purchased by Executors to help protect themselves.
3 / beneficiaries demand an Executor work faster?
Settling an estate takes significant time. While there are no legal guidelines specifying how fast Executors must work, the best course of action is for an Executor to initiate regular and clear communication about the status of estate settlement. Beneficiaries in turn, should be patient and understanding of the time needed.