Applications for a Certificate of Appointment can be a minefield of mistakes waiting to happen for the uninitiated. One of the first things that should be reviewed when preparing the application is considering who the applicants will be.
When a will jointly appoints multiple estate trustees, who should be named as applicants? Rule 74.04 of the Rules of Civil Procedure provides the guidance:
74.04 (1) A person may seek a certificate of appointment of estate trustee by filing an application for a certificate of appointment of estate trustee (Form 74A) together with,
- (e) a renunciation (Form 74G), from the following persons:
- (i) if there is a will, from every living person who is named in the will or codicil as estate trustee who has not joined in the application and is entitled to do so
Accordingly, an application for a Certificate of Appointment of Estate Trustee With A Will must include as applicants all living estate trustees named in the will, and if not, a renunciation for the individuals who are not joined to the application that are entitled to do so.
It is interesting to note that, per the Estates Procedures Manual, renunciations are not required to be attached for an application for a Certificate of Appointment of a Small Estate Certificate. The application for a Small Estate Certificate includes a declaration as to those who are named as estate trustees in the will and who are not applying, but attaching those renunciations appears unnecessary.
For estate litigators who have clients named as an estate trustee that object to the probating of a will, these rules will serve to prevent probate from issuing in cases where one of multiple estate trustees seek to propound the will. However, a Notice of Objection may still be prudent in ensuring that probate is not granted in error to a rogue estate trustee.
If you need assistance administering an estate, the lawyers at Hull & Hull are available to help you navigate this process. Contact us today to learn more about how we can help.
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