All About Estates

Probate Points to Remember Part 2 – Some Additional Tips

In my blog Probate Points to Remember – A.K.A. Names and More – All About Estates of October 16, 2020, I shared from my list of “Probate Points to Remember”.  I provided tips regarding how to name individuals, including the deceased, executors and beneficiaries, such as when using “also known as” names, in applications for certificates of appointment of estate trustee (“Probate Applications”).  The purpose of the list is to remind myself of how I have handled certain practical matters on Probate Applications.  In today’s blog, I am sharing some further items from my list.

The examples below are from a Probate Application with a will for an individual applicant (Form 74.4).

Marital Status of the Deceased

When you indicate the marital status of the deceased, ‘married’ is used only for legally-married persons.  A deceased who was in a common law relationship at the time of their death would be described as ‘unmarried’, as follows:

 

 

Person named in the Will as Estate Trustee not Acting

On the Probate Application, you must provide an explanation if a person is named in the will as an estate trustee but he or she is not going to act as an estate trustee, meaning they are not an applicant to the Probate Application.  For example, s/he may be (i) deceased; (ii) may have renounced; or (iii) may not be eligible pursuant to a condition set out in the will.  The following is sample wording of how I would complete the Probate Application box in each of these scenarios:[1]

 

 

 

 

Typically in scenario (iii), the eligibility condition in the will would also include the methodology for appointing a replacement estate trustee.  In this case, I would complete the applicable Probate Application box in the following manner:

 

 

 

 

 

How to Complete the Certificate of Appointment

On Form 74.13, the Certificate of Appointment of Estate Trustee with a Will, in addition to providing the applicant(s)’ information, you must also provide the explanation given on the Probate Application as to why any person appointed in the will as estate trustee is not accepting such role.  Below is a sample of the wording I would use based on the scenarios above.  [Note – this is not the complete form.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[2] As an aside, if an estate trustee is retired, the occupation should show the last occupation of the deceased prior to retirement, preceded by the word “retired”, e.g.  Retired Business Executive.

Condition Met by Person named in the Will as Estate Trustee

If an applicant is entitled to apply because they have met the condition in the will for their appointment as estate trustee, I would attach a schedule to the Probate Application explaining how such condition was satisfied.  Below is sample wording for a fact situation where the condition was that the deceased’s son-in-law was married to and cohabitating with the deceased’s daughter on the date of the deceased’s death.

 

 

 

 

 

Exhibit Stamps

Wills that we prepare at Fasken typically have the signature page (i.e. where the testator and the two witnesses have executed the will) followed by a back cover page.  The placement of the exhibit stamps for the Probate Application (and the affidavit of execution of will – Form 74.8) must be on the back of the signature page of the will, not on the back cover page.

In some circumstances, wills may have additional pages following the signature page, for example, a schedule of trustees’ powers and/or a memorandum that deals with the disposition of the testator’s personal property.  The correct placement of the exhibit stamps in these circumstances is the same as above, being on the back of the signature page of the will, notwithstanding that there are further pages following the signature page.

I hope these additional tips are helpful.  Thanks for reading and Happy Holidays everyone.

 

[1] Disclaimer:  These are examples only – the completion of the Court forms is dependent on the relevant facts and current rules and policies.

About Betty Laidlaw
Betty Laidlaw is a law clerk in the Trusts, Wills, Estates and Charities group at Fasken, with over 30 years’ experience. Betty has extensive experience assisting executors and trustees in managing complex, high-value estates and trusts. Betty specializes in the administration of estates and trusts and also focuses on estate accounting and estate litigation. Betty has received a Certificate in Estate and Trust Administration (CETA) from STEP Canada which denotes excellence in the industry. With this Certificate, Betty has received professional recognition as a specialist in estate and trust management. Betty is an affiliate member of STEP Canada and an associate member of the Institute of Law Clerks of Ontario. Email: blaidlaw@fasken.com.

1 Comment

  1. Sarah Cameron

    December 21, 2020 - 5:48 pm
    Reply

    Thank you once again Betty, for sharing your expertise. Its greatly appreciated.

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