The Role and Limitation of Estate Solicitor vs. Estate Trustee

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1 The Role and Limitation of Estate Solicitor vs. Estate Trustee Define the Role of the Estate Solicitor Duties of the Estate Solicitor Define the Role of the Estate Trustee Who can act as Estate Trustee Duties of the Estate Trustee Estate Solicitor acting as Estate Trustee (Dual Roles) Duties of the Solicitor acting as Trustee Define Conflicts that exists with the dual roles Compensation Risk and Liabilities

2 Role of an Estate Solicitor Provide advice to the estate trustee - The Estate Trustee hires and can fire the estate solicitor - No obligation to report to the beneficiaries Perform legal function - Applying for probate - Serving the beneficiaries with the probate application

3 Duties of the Estate Solicitor Take instructions/directions from the Estate Trustee Prepare application for issuance of probate Values are provided by the Estate Trustee Prepare documentation to deal with assets (collection of assets) Agreements to purchase and sale for real property Declaration of transmission to deal with stocks Prepare notarial copies of probate Assist with preparing accounts for audit by the Courts (passing of accounts) Preparing releases for the signature of the beneficiaries Represents the Estate Trustee in Court If any claims are brought against the estate Preparing any applications to the Court for advice

4 Role of an Estate Trustee An Estate Trustee is named by the Testator in his/her Last Will and Testament In the absence of a will; a next of kin of the testator can apply to be named Estate Trustee Without a Will The Estate Trustee is the legal owner of the assets of the testator The Estate Trustee administer the estate as outlined in the Will of the Testator. The estate trustee has an obligation to protect the value of the estate and distribute to the beneficiaries named in the will

5 Duties of the Estate Trustee There are over 200 duties that are required to settle an average estate. Make funeral and burial arrangements Determine the validity of the Will Locate the address of the named beneficiaries Determine the value of the estate and make a comprehensive list of assets as of date of death Determine estate liabilities Creditors Taxes owing Engage any third party to facilitate the settlement of the estate Real estate agents Accountants Solicitors Account to the beneficiaries Maintaining accounting (credits and debits) Distribute the estate Ensure all tax filings are completed

6 Estate Solicitor as Estate Trustee

7 Duties of Estate Solicitor acting as Estate Trustee - The Estate Solicitor wears two hats. - Must separate the roles - As Estate Trustee the role/obligation is the same as a lay person being named Estate Trustee

8 Conflicts in Dual Roles Separation of role Sometimes the roles may overlap Compensation of roles should be separated All duties of the Estate Trustee applies to the Solicitor acting Reporting to beneficiaries Personal liabilities Engaging third parties

9 Conflicts in Dual Roles Compensation vs. Legal Costs - Estate Trustee Compensation is outlined in the Will - Absence of direction in the Will - Beneficiary approval - Passing of Accounts (Trustee Act)

10 Compensation and Legal Costs Trustee Compensation 1) Will 2) Trustee Act sections 23(2), 23.1 and 61

11 Compensation and Legal Costs - Maintain separate accounts - The Will contains direction for legal costs - This is still opened for the beneficiaries to question the accounting - Distinguish between legal work and estate administration - The solicitor is responsible to prove he/she is not charging lawyer s rates for estate administration

12 Compensation and Legal Costs Provide a breakdown of costs - The court may still reject

13 Risk and Liabilities Assume personal liabilities for acting as Estate Trustee when acting without giving legal advice EARssure insurance for executor Dual Role - LAWPRO