When a person dies, his or her affairs need to be dealt with by an appropriate representative. This representative may be a person (or people or trust company) named as an executor or estate trustee in the deceased person’s will, or, in situations where the deceased died without a will, a family member or interested party may step forward to administer the estate. This representative may or may not need to apply to the court in order to obtain the requisite authority to administer the estate, depending on the circumstances of the specific estate. If the deceased person made a will, this is called an application for a Certificate of Appointment of Estate Trustee With a Will, formerly called “probating a will” or “applying for probate”. If the deceased person did not make a will, it is called an application for a Certificate of Appointment of Estate Trustee Without a Will.
The representative of the estate has obligations to administer the estate in a timely manner following the death of the deceased person. These obligations include applying for a Certificate of Appointment of Estate Trustee With or Without a Will if necessary and paying the applicable estate administration tax (formerly called “probate fee” or “probate tax”), ascertaining the assets and liabilities of the estate, filing the deceased person’s income tax and estate tax returns, realizing the estate assets and paying all debts including taxes owing, distributing the estate to the lawful beneficiaries (pursuant to a will or the laws of intestacy where there is no will), keeping detailed and accurate records of the administration of the estate, accounting to the beneficiaries of the estate, and obtaining releases from the beneficiaries where applicable.
Although it is the sole responsibility of the estate representative to carry out these obligations and administer the estate, he or she may need the services of a lawyer to assist with some of these tasks, such as preparing the application for the certificate of appointment, providing advice regarding the appropriate distribution of the estate based on the terms of a will or the laws of intestacy as the case may be, and preparing documentation for the beneficiaries to sign releasing the personal representative from liability with respect to his or her administration of the estate.
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