When administering an estate, the estate trustee should make sure that any securities that form part of the estate are under his or her care and control. For example, if the securities are held in the deceased’s safety deposit box, it may be a good idea to move them to another location or to make sure with the depository that the safety deposit box is transferred into the estate trustee’s name alone so that only he or she may have access to it.
It is also a good idea to recommend to the estate trustee that they have the deceased’s securities certificates transferred from investment firms and other locations into the estate trustee’s own safekeeping facility. If the securities are to form part if the estate assets, the securities will need to be transferred into the estate trustee’s name via a transmission. If the securities are to be sold, a transfer is also needed requiring a transmission. If foreign assets are held, the lawyer must be aware of the requirements of the foreign jurisdiction and prepare all necessary documentation to complete transfers and dispositions.
In situations where there are marketable bonds or debentures (distinguished from Canada Savings Bonds, GICs, and term deposits) or marketable stock, it is necessary to have a power of attorney executed in favour of the transfer agent or have the certificate endorsed. The endorsement is often made on the reverse of the security certificate itself. Another alternative is to complete a separate power of attorney, since it is necessary for the estate trustee to attend at an institution to verify the signatures to the satisfaction of the stock exchange. Having a separate power of attorney also affords the estate trustee the power to amend any mistakes there might be on the endorsement made on the security certificate itself. This also enhances the safekeeping of the security as well.
Financial institutions often state the need for a certificate of appointment of estate trustee (formerly known as “probate”) in order to effect a transfer. As this is not required by law, we often advise our clients to push back and at least ask the institution to sell the securities and hold the assets pending receipt of the certificate so as not to become a victim of a volatile market.
Lawyers should also be aware of additional requirements relating to foreign jurisdictions, including the United States, shares registered in the name of a limited company, and shares registered in the name of a minor.
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