Administering your last will and testament ,Estates Role of Executor and Lawyer
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Differences in Roles of Executors (Estate Trustee) and Lawyers


Role of Estate Trustee (formerly Executor/Executrix)
    As an estate trustee you are the person primarily responsible for the administration of the estate. Although this is by no means an exhaustive list, your responsibilities as estate trustee include the following:

  1. Making proper funeral and burial arrangements.

  2. Determining that the will, if any, appointing you as executor is the last will of the deceased (or satisfying a competent court that the deceased had no will}.

  3. Determining the names and addresses of those beneficially entitled in the estate, if any, and notifying them of their interest.

  4. Determining the full nature and value of the assets of the deceased and compiling a list of them.

  5. Arranging with banks or trust companies for listing of contents of safety deposit boxes, if any.

  6. Determining what debts were owed by the deceased at the time of death and arranging for payment of them.

  7. If you consider it necessary, advertising for creditors.

  8. Contesting and/or settling any debts if you are not satisfied that such debts are legitimate debts of the deceased.

  9. Determining the income tax liability of the deceased and of the estate, filing of necessary returns, paying any tax owing and obtaining an income tax clearance certificate.

  10. Accounting to the beneficiaries, and the court, if required to do so, for all actions in connection with the administration of the estate.

  11. Distributing assets of the estate "in specie", as the will directs, or, alternatively, if there is discretion, to convert into money and distribute them among those beneficially entitled thereto in accordance with the provisions of the Will.

The actual carrying out of all of the foregoing duties and functions may be delegated but the ultimate responsibility still remains with the estate trustee. As estate trustee of the estate it is your responsibility to make decisions. Your lawyer can give you advice from time to time, and, in addition, you are also entitled to seek expert assistance in the appropriate circumstances. The responsibility to make decisions, however, is yours and you cannot delegate this responsibility to others.

Lawyer's Role

  1. Advising you on all matters in connection with the administration of the estate, if necessary.

  2. Preparing the application to the appropriate court to confirm you appointment as estate trustee {also known as executor/executrix} of the estate.

  3. Preparing the advertisement for creditors and others and searching for executions, if you wish to do so {because of the cost, usually not done in family situations where all beneficiaries are also estate trustees or where trustees are certain that there are no debts since payment to beneficiaries without advertising leaves the trustee potentially liable to pay the debts if estate assets have been distributed}.

  4. Assisting you in transferring and/or realizing the assets of the estate by preparing documents that might be required for this purpose.

  5. Assisting in the preparation of your accounts for audit by the court if you decide or are required to do so.

  6. Preparing releases for completion by the beneficiaries of the estate as required when assets are paid or transferred to them.

  7. Preparing application to court permitting payments to be made to a foreign resident beneficiary resident in a country designated in the regulations to the Estates Administration Act, if necessary.

  8. In some cases an estate trustee may relinquish most if not all of his duties and responsibilities to the solicitor acting for him in connection with the estate. This does not present any problems providing it is understood by the estate trustee and the solicitor that responsibility for making decisions in connection with the estate rests with the estate trustee. To the extent an estate trustee retains a solicitor, chartered accountant or other person to perform duties that fall within the duties of a personal representative, the compensation payable to such person is payable out of his estate trustee's compensation.

  9. One function personal representatives frequently relinquish to professional advisers is that of administering trust estates under a will, which trusts will be administered on an ongoing basis over a number of years. An increasing trend to relinquish this function to such advisers is the result of a number of factors including the fact that inflation has increased the value of estates to such an extent that personal representative are reluctant to assume responsibility, particularly the onerous responsibility of maintaining accounts. In the past this function has frequently fallen to trust companies. However, solicitors are frequently expected to assume more responsibility in the administration of ongoing trusts particularly in the case of small estates which trust companies are unwilling to administer.

  10. Lawyer does the paperwork and legal work to protect the executor from the beneficiaries
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