Estate Planning

Administration and the Role of the Solicitor and the Role of the Estate Trustee

By Hull & Hull LLP

The recent case of Rooney Estate v. Stewart Estate (2007), CarswellOnt 6560 serves to highlight the “distinct but complimentary” roles of the Estate Trustee and the estate solicitor. There, the court noted the responsibilities of each.

The court held that the Estate Trustee is responsible for:

1.         arranging for the funeral and disposition of remains;

2.         locating the will and instructing the solicitor to apply for the appropriate grant of appointment;

3.         locating all the assets of the estate, including making arrangements to secure, preserve, and dispose of such assets in accordance with the terms of the will;

4.         advertising for creditors and paying all debts of the estate including the filing of appropriate tax returns;

5.         preparing a set of accounts for the approval of the beneficiaries or the court, as is required; and

6.         distributing the estate.

The court noted that, generally, the role of the solicitor is to apply for a certificate of appointment for the trustee and to attend upon a passing of accounts. The Estate Trustee is entitled to pay these legal expenses out of the Estate.

The Estate Trustee can claim compensation for carrying out his or her duties. That compensation may also include reimbursement for professional help. However, the Estate Trustee cannot claim compensation for services provided by others whose services are charged to the estate.

Problems can arise where the solicitor performs work that falls within the Estate Trustee’s responsibilities. While this is permissible, the court will ensure that the estate is not being doubly charged. Further, the court will not normally allow a solicitor to charge solicitor’s rates for trustee work.

In the decision, the court cautions that the “solicitor should not perform trustee’s work unless instructed to do so by the trustee. If such a request is made, the solicitor should advise the trustee that he will render an account to the trustee personally for doing her work. Generally, the estate is not liable to pay this account; rather, it falls to the trustee to pay out of her compensation.”

Thanks for reading.

Paul Trudelle

Full post as published by Toronto Estate Law Blog on February 05, 2008 (boomark / email).