Distribution of Estates

• Author: Tina Kamakaris/Jane Kamakaris/Louis Kamakaris
• Pages: 775-790

775

Chapter 43 Distribution of Estates

CHAPTER 43

is chapter covers the distribution of testate and intestate estates.

DISTRIBUTION OF ESTATES

Once the estate trustee, with or without a will, receives the certicate of appointment of estate

trustee, they may proceed to pay the deceased’s debts and ultimately distribute the assets of the

estate to those entitled to receive it. For clarity, in this chapter, the term beneciaries describes

persons beneting under a will. Generally, the terms heir and next of kin describe persons bene-

ting under the Succession Law Reform Act since there is no will.

Testate estates If there is a will, the estate trustee with a will (executor) deals with the estate

as the will directs. A will may direct that a particular piece of property, or all of the estate, be

transferred to one beneciary or to a number of beneciaries or, in many cases, to the trustee of

the estate, who is usually the same person or corporation as the estate trustee with a will, to deal

with as the will directs: for example, the testator may direct the trustee to manage the testator’s

estate until his children become of age, during which time, the estate must be held in the name

of the trustee to enable the trustee to deal with it. e estate trustee with a will signs all of the

transfer documents on behalf of the deceased. In testate estates, those beneciaries receiving a

gift of real estate under a will may sometimes be referred to as devisees, and those receiving a

gift of personal property such as money, also referred to as a legacy, may sometimes be referred

to as legatees.

Intestate estates If there is no will, the estate trustee without a will distributes the estate

among the heirs as set out in the Succession Law Reform Act. See the summary of line of inherit-

ance in Chapter 40. e heirs may decide among themselves who should receive which property,

and the estate trustee without a will signs all of the transfer documents on behalf of the deceased.

Distribution of intestate estate Pursuant to the provisions of the Estates Administration

Act and the Trustee Act, no distribution is to take place on an intestacy for the period of one year.

Legal TIP

An estate trustee with a

will or without a will may

be the same person

as a beneficiary or heir,

respectively.

DISTRIBUTION OF

ESTATES

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

776 Legal Office Procedures

NOTARIAL COPIES

Certificate of appointment of estate trustee (with or without a will) Once you

receive from the court the certicate of appointment of estate trustee (with or without a will),

prepare several notarial copies of it. e notarial copies serve in place of the original as proof that

the estate trustee (with or without a will) has the authority to deal with the estate. Almost all

agencies require a notarial copy of the certicate before they transfer property from the deceased

to any beneciaries or heirs.

To make a notarial copy of a certicate of appointment of estate trustee (with or without a will),

key a notarial certicate, Precedent 43.1, for a notary (usually, the lawyer) to sign. Attach to the

notarial certicate a copy of the certicate of appointment of estate trustee (with or without a

will). Keep the original certicate of appointment of estate trustee (with or without a will) in the

le for preparing any additional notarial copies.

Proof of death Prepare notarial copies of the death certicate to submit to various agencies

who might request it.

NOTICE TO CREDITORS

Generally, if the deceased operated a business or was likely to have creditors, you should publish

a notice to creditors in a newspaper where the deceased resided. Creditors are individuals and

corporations to whom the deceased owed money. Prepare the notice, Precedent 43.2, and send

it to the newspaper, giving instructions as to the number of times the notice should appear in

the newspaper, usually three times, and requesting proof of publishing. e newspaper usually

forwards you an adavit by one of its employees swearing to the publishing of the notice and

attaching a copy of the published notice. Any unpaid creditors who do not respond are deemed

to have no claim after the estate is distributed. If an estate trustee (with or without a will) fails

to give notice of the death and the distribution of the estate, the estate trustee (with or without a

will) could be held personally liable for any claim of a creditor of the estate.

ere are also online platforms for posting legal notices such as notices to creditors. e online

notices are discoverable and accessible for a period of time to any person conducting an internet

search against the name of the deceased. e legal notices websites also provide notarized adav-

its of publication as proof of publication, usually at an additional cost.

FINAL INCOME TAX RETURNS

If the death occurred between January 1 and October 31, the estate trustee (with or without a

will) must le the nal income tax return for the deceased, which an accountant usually prepares,

by April 30 of the following year. If the death occurred between November 1 and December

31, the nal income tax return must be led within six months of the date of death. e estate

trustee (with or without a will) should distribute the estate only after they receive a clearance

certicate from the federal government showing no income tax owing.

DISTRIBUTION OF REAL ESTATE

Following are some commonly used documents relating to distribution of real estate. Note

that the electronic precedents contain law statements (identied by bold lettering) which only

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Always read through

the various forms

and precedents to

understand their overall

content, and always try

to see the reasons why

each document may

be required. This gives

meaning to your work.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.