Things To Consider When Acting As An Estate Trustee During Litigation
In Alberta, the estate trustee is known as the personal representative. Under the Estate Administration Act, the court may appoint a personal reprentative either before or after estate litigation has commenced, whether the litigation regards the validity of the will, an application for a grant, or an application to revoke a grant. The personal representative appointed by the court in such a case will be subject to directions by the court, and lack the power to distribute the estate - but otherwise they will have all the powers of a personal representative appointed in a will.
If you have been named as a personal representative, either in a will or by a court, our estate litigation lawyers may help ensure that you are aware of the most important things to consider when acting as an estate trustee during litigation.
Duties of an Estate Trustee
The core tasks of the personal representative are:
- - the identification of the assets and liabilities of the estate
- - the administration and management of the estate
- - the payment of debts and obligations
- - the distribution of the estate, and accounting for its administration
If estate litigation is pending, the personal representative is still responsible for all of the core tasks, except for the distribution of the estate. Distribution will be delayed until after the litigation is resolved. The Court may issue specific directions to the personal representative requiring them to perform additional tasks, such as tracing an allegedly missing asset, or providing information relevant to the litigation.
When Does Estate Litigation Occur?
Estate litigation can occur for several different reasons. The deceased may have been involved in litigation before their death, in which case the personal representative may be required, or may have the option to, continue the litigation on behalf of the estate.
Someone may contest the validity of the will, or otherwise challenge the administration and management of the estate. Disputes can also arise with respect to the compensation to be paid to the personal representative, or with respect to the accounts prepared by the personal representative in relation to the administration of the estate.
When Will You Be Responsible for Costs of Estate Litigation?
In the past, it was common for the legal costs associated with estate litigation to be paid out of the estate. This, of course, diminishes the value of the estate available for distribution to the beneficiaries. As a result, the modern rule with respect to costs of estate litigation is that they are treated in a similar fashion to costs in other civil litigation: the successful party is entitled to recover costs from the unsuccessful party.
When the position taken by the estate's executor, or personal representative, is unsuccessful at trial, a personal representative who has conducted themselves "reasonably" should not be required to pay costs in their personal capacity. However, if a court finds that a personal representative has taken unreasonable steps during the litigation, they may be found personally responsible for paying the successful party's legal costs.
Contact Our Edmonton Estate Litigation Lawyers Today for a Consultation
The circumstances of each individual case are unique. For a consultation tailored to your case, contact us today and speak with our Edmonton estate litigation lawyers. Our team is available to address your questions and offer information on things to consider when acting as an estate trustee during litigation, and more.
*Please be advised that this article does not constitute legal advice. For legal advice, please consult with a lawyer.