All About Estates

You Better Think – Who will be your Estate Trustee?

Aretha Franklin, queen of soul, passed away on August 16, 2018 in Michigan, United States.  She leaves behind unforgettable songs, a vast estate, and no will.  It never ceases to surprise me when I hear about a celebrity dying without a will (i.e. intestate).  Sure, celebrities are people too.  But, intestate celebrities often leave behind multi-million dollar estates without specifying who will administer or inherit the estate.  As previously blogged about, Ontario law generally sets out who inherits a deceased’s estate on intestacy.  Similarly, when a person dies without a will in Ontario, the law determines who can administer the deceased’s estate.

In Ontario, subsection 29(1) of the Estates Act specifies that the following individuals may apply to the court to act as the estate trustee of a deceased’s estate on intestacy (i.e. for a “certificate of appointment of estate trustee without a will”):

  • the spouse/common-law partner of the deceased;
  • the deceased’s next of kin; or
  • both the spouse/common law partner and the deceased’s next of kin.

The person appointed estate trustee without a will must be a resident of Ontario.  Where there is more than one next-of-kin of the same degree entitled to apply, either all or one (or more) may apply with the consent of all others.  In order for someone with a lower priority to act as estate trustee (for example, a grandchild over a child), the person(s) with a higher priority must formally give up or renounce their entitlement to act as estate trustee and consent to the other person acting.  The Estates Act further gives discretion to the court to appoint a trust company as the estate trustee, either alone or jointly with another person.

Whoever is appointed as estate trustee will be tasked with administering the estate.  This will include making funeral and burial arrangements, determining and securing the estate assets, advertising for creditors, paying the deceased’s debts and liabilities, determining who the estate’s beneficiaries are, and distributing the estate to the beneficiaries.  Moreover, the estate trustee responds to any claims commenced against the estate (conversely, an estate trustee can also commence a claim on behalf of the estate).

What Will Become of Aretha Franklin’s Estate?

Ms. Franklin joins the long list of celebrities who died intestate.  She was not married and is survived by four sons, grandchildren, and members of extended family.  However, one of Ms. Franklin’s sons is incapacitated and represented by a guardian.

Under Michigan law (similar to Ontario law), Ms. Franklin’s estate will be divided equally among her descendants, being her four sons.  Moreover, Ms. Franklin’s niece has applied to the court in Michigan to administer the estate.  It is not clear whether any conflict has arisen between Ms. Franklin’s sons or whether her incapacitated son will be making a claim against the estate for additional financial support.

Once appointed as the estate trustee, Ms. Franklin’s niece will need to respond to any claim(s) or requests made against Ms. Franklin’s estate (while there is no word of any formal claim against the estate, the People for the Ethical Treatment of Animals has written to Ms. Franklin’s estate to request that Ms. Franklin’s fur coats be donated to PETA’s fur donation program).

With proper estate planning, you can appoint an estate trustee you trust will be able to administer your estate in a timely and proper manner.  Moreover, you can ensure that only those you intend to benefit from your estate inherit and that your dependants are adequately provided for.

About Anna Alizadeh
Anna was called to the Ontario Bar in June 2016. Prior to joining de VRIES LITIGATION LLP, she articled at a full service firm where she developed a strong background in litigation and alternative dispute resolution. Anna also worked on estate litigation files and estate planning matters, and co-authored a chapter on Physician Assisted Dying for Key Developments in Estates and Trusts Law in Ontario, 2015-2016 edition. She obtained her Honours Bachelor of Science in Psychology, with a minor in Biology, from York University, and her Juris Doctor from the University of Ottawa. While in law school, Anna participated in an exchange program in Paris, France, where she obtained her Certificate in French and European Union Law. Anna practices in the areas of estates, trusts and capacity litigation. She is fluent in Farsi and has a professional working proficiency in French. Email: AAlizadeh@devrieslitigation.com

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