Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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When applying for a Certificate of Appointment of Estate Trustee with a Will, the applicant must be certain that the Will annexed is the Last Will and Testament of the Deceased. Ideally, the testator will have discussed the location of their Last Will with a trusted family member, friend or professional and it will be easily located at the appropriate time. 

If this is not the case, there are a number of places to begin your search for a Last Will, as discussed by Sean Lawler in his article “Wills Kept by the Law Society of Upper Canada” in the most recent issue of Deadbeat, a publication of the Trusts and Estates Law Section of the Ontario Bar Association.

Some of the places Wills are often kept include the following:

1. The drafting lawyer's Wills vault.
2. Among the Deceased's possessions.
3. In a safety deposit box.
4. With the Executor.
5. With an attorney for property or for personal care.
6. On file with the Superior Court of Justice pursuant to Section 2 of the Estates Act, which establishes a Wills depository administered by local Court offices.

If you are unsuccessful locating a Will as above, you can place an ad with the Ontario Reports or other publication to determine if another lawyer who acted for the Deceased, or any other person, is in possession of a Last Will.

One other place to look is the Law Society of Upper Canada (“LSUC”). The files of many lawyers who die, retire, or are disbarred are transferred to LSUC’s Trustee Services Department. Most files are now stored electronically.

LSUC keeps over 45,000 Wills, a number that increases by approximately 3,000 per year. The Wills register can be searched by the name of the lawyer or by the name of the Testator.

The key takeaway here is that estate planning should not be a secret. Discuss your Will with your family (contents and location) and make it easy on loved ones when the time comes to probate your Will.

Sharon Davis - Click here for more information on Sharon Davis. 

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Lawyers frequently take funds into their trust accounts on behalf of clients and others. Usually, it is not difficult to determine to whom those funds belong. However, what happens when the beneficial owner of funds held in trust cannot be identified or located?  

In Ontario, section 59.6 of the Law Society Act permits a lawyer (or licensed paralegal) who has held money in trust for or on account of a person for at least two years to apply for permission to transfer the money to the Law Society of Upper Canada (“LSUC”) if,

1. The lawyer has been unable to locate the person entitled to the money despite having made reasonable efforts throughout a period of at least two years; or
2. The lawyer is unable to determine who is entitled to the money.

The application procedure for transferring the money to LSUC is set out in By-Law 10.

You must complete and file the licensee application form, which will be reviewed by LSUC. Upon completion of the review, LSUC will notify you whether permission to transfer the money to it has or has not been granted.

If permission is granted, you must,

1. Send a trust cheque, made payable to "The Law Society of Upper Canada, in Trust", in an amount equal to the amount of money for which you have received permission to transfer; and
2. Send copies of your financial records relating to the money which you have been permitted to transfer.

Permission to transfer money will typically be subject to the condition that you inform LSUC immediately if you obtain any new information relating to any person entitled to the money that was transferred.

Once the money has been transferred, your liability as trustee or fiduciary with respect to the amount transferred is extinguished.

See the LSUC website for more information.

Sharon Davis - Click here for more information on Sharon Davis. 

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A recent article in the Ontario Lawyers Gazette discusses succession planning for lawyers with respect to their practice. Lawyers often fail to plan for their retirement or death and often do not set up a formal succession plan for their practice to the determent of their families, clients, and colleagues.

The article states that 41% of practicing lawyers are over 50 years old and 34 % of all lawyers in Ontario are sole practitioners with an additional 29% working in firms of two to ten lawyers. However, often lawyers do not prepare well enough in advance for the winding down of their practice or what will happen to their practice in the event of their death or disability.

The article makes a number of helpful suggestions including:

• Advising sole practitioners to assign another licensed lawyer or paralegal with alternative signing authority for their trust account in the case of an emergency;
• Suggesting that practitioners name a licensed lawyer or paralegal as a limited trustee in their Will for the sole purpose of winding up a practice;
• Advising lawyers that a non-lawyer trustee or attorney pursuant to a Power of Attorney may not be able to deal with some of the issues with respect to winding down a practice;
• Advocating that lawyers communicate with their families, partners, and employees their succession plan; and
• Advising lawyers to plan well in advance (i.e. five years) to maximize their financial compensation.

The Law Society offers A Succession Planning Toolkit and a Guide to Closing Your Practice to assist lawyers. On May 20, 2009, the Law Society will be offering a teleseminar Succession Planning for your Practice  discussing these topics and more.

Thanks for Reading,

Diane Vieira

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