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Estate Administration

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This publication guides practitioners acting for executors and administrators in estate law matters in Ontario.

2 Matter Plans

Overview

The publication comprises 2 guides assisting practitioners in obtaining a Certificate of Appointment of Estate Trustee with or without a will. The commentaries cover obtaining the certificate of appointment, collecting assets, and distributing the estate in accordance with the will or the rules of intestacy.

The Reference materials folder provides guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Precedents in this publication include:

  • Letters to the estate trustee and beneficiaries at various stages;
  • Libraries of letters to asset holders – initial and final;
  • Letters and forms for estate trustee compensation;
  • Deeds of release and immunity;
  • Deeds of family arrangement;
  • Statement of assets, liabilities, and distribution;
  • Letter to beneficiaries with distribution;
  • Final letters to estate trustee – concise and extensive.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Probate - Appointment of an Estate Trustee with a Will (ON)
  • Folder icon Reference materials
    • Item icon AI Prompts
    • Item icon Electronic Signing and Remote Witnessing
    • Item icon Further information
  • Item icon Overview
    A Certificate of Appointment of Estate Trustee is proof of a person’s legal authority to administer the estate of a deceased person. Historically, a Certificate of Appointment of Estate Trustee was referred to as either a letter of probate or a letter of administration, depending on whether the ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Estate administration
    • Item icon To do list - Probate - Appointment of an estate trustee with a will
    • Item icon First steps
    • Item icon Client details, verification, and source of funds
    • Item icon Retainer instructions - Estate administration
    • Item icon Conflict of interest check
    • Item icon Initial letter to client enclosing retainer agreement
    • Item icon Retainer agreement - Ontario
    • Item icon Scope of work - Estate administration
    • Item icon Enclosure - Information sheet - Estate administration
    • Folder icon If required - Authority previous lawyer
      • Item icon Letter to previous lawyer with authority to obtain documents
      • Item icon Authority to obtain documents from previous lawyer
    • Folder icon If required - Application for a death certificate
      • Item icon Request for a death certificate - Online application - Service Ontario
      • Item icon Request for a death certificate - Paper form
    • Item icon Time and costs estimates
    • Folder icon If required - Costs disclosure update and a non-engagement letter
      • Item icon Letter to client updating costs disclosure
      • Item icon Non-engagement letter
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Confidentiality deed
        • Item icon Deed for general use
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment clause
          • Item icon Confidentiality clause for defined information - All parties
          • Item icon Confidentiality clause for defined information - One party
          • Item icon Confidentiality clause for terms of agreement - All parties
          • Item icon Confidentiality clause for terms of agreement - One party
          • Item icon Costs clause
          • Item icon Counterparts clause
          • Item icon Dispute resolution clause
          • Item icon Events beyond control clause
          • Item icon Governing law and jurisdiction clause
          • Item icon Interpretation clause
          • Item icon No assignment clause
          • Item icon Notices clause
          • Item icon Severance clause
          • Item icon Waiver clause
          • Item icon Whole agreement clause
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment clause
          • Item icon Confidentiality clause for defined information - All parties
          • Item icon Confidentiality clause for defined information - One party
          • Item icon Confidentiality clause for terms of agreement - All parties
          • Item icon Confidentiality clause for terms of agreement - One party
          • Item icon Costs clause
          • Item icon Counterparts clause
          • Item icon Dispute resolution clause
          • Item icon Events beyond control clause
          • Item icon Governing law and jurisdiction clause
          • Item icon Interpretation clause
          • Item icon No assignment clause
          • Item icon Notices clause
          • Item icon Severance clause
          • Item icon Waiver clause
          • Item icon Whole agreement clause
      • Folder icon Execution clauses
        • Item icon Execution clauses - Agreements and contracts
        • Item icon Execution clauses - Deeds
      • Folder icon Statutory declaration
        • Item icon Statutory declaration
      • Item icon Standard annexure note for documents
  • Folder icon B. Preliminary matters including executors, beneficiaries and small estates
    • Item icon Client engagement
      When the firm acts for multiple executors, the firm cannot continue to act when there is a material conflict of interest. To avoid any conflict, clarifying that the firm acts for the executor and not the beneficiaries avoids the beneficiaries later claiming a lack of legal advice they expected the ...

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    • Item icon The deceased
      Remains and funeral wishes Testators may give directions in their will on funeral arrangements or organ donation. Many directions are not binding on the executor. The executor is only bound to dispose of the remains in a dignified manner. Directions regarding donation of body parts are binding.

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    • Item icon Funeral and other expenses
      Funeral expenses The deceased’s bank may allow funds to be withdrawn from the estate before a grant is obtained to pay funeral expenses. If not, the funeral expenses will be borne by another person and claimed as an estate debt.

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    • Item icon Executors
      An executor is a person appointed by the testator in their will to administer their estate. The executor does not require a certificate of appointment unless dealing with real property interests or required by a third party to confirm the executor’s authority and give a good release.

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    • Folder icon If required - Renunciation
      • Item icon Renunciation
        If an executor does not wish to proceed with an application, they must sign a renunciation to be filed with the application by another for a Certificate of Appointment of Estate Trustee. If there are no other executors named in the will, any person with an interest in the estate can apply for a ...

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      • Item icon Letter to person renouncing with renunciation
      • Item icon Renunciation and Consent
    • Item icon Consent
      An applicant for a Certificate of Appointment of Estate Trustee With a Will who is not the executor named in the will must obtain the consent of the persons entitled to share in the distribution of the estate using form 74G. Any person not consenting to the application must be served with a ...

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    • Item icon Beneficiaries
      A beneficiary is a person or entity to whom a gift is made by will. However, for the named person to be a beneficiary, both the will and the bequest must be valid. It is incumbent on an executor to establish the will’s validity and then administer the estate according to its terms. The executor ...

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    • Folder icon Beneficiaries
      • Item icon Initial letter to beneficiary - Application with a will
      • Item icon Initial letter to beneficiary - Application with a will by alternate executor
      • Item icon Affidavit
      • Item icon Clause - Affidavit of identity of beneficiary under will
    • Item icon Estate taxes and pensions
      Estate taxes and duties

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    • Item icon The requirement for a certificate of appointment
      There is no general statutory requirement to obtain a certificate of appointment when the deceased’s will appoints an executor. Banks and financial institutions cannot insist on a certificate of appointment if the value of property they hold for the deceased is less than $50,000. In these ...

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    • Folder icon If required - Small estate
      • Item icon Application for a Small Estate Certificate
      • Item icon Small Estate Certificate
    • Item icon Challenging the validity of a will
      Challenging a will questions its validity, whereas contesting a will questions the fairness of its provisions. Beneficiaries who do not have any issue with the validity of the will but feel that inadequate provision has been made for them in the will can claim greater provision under Part V of ...

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    • Folder icon If required - Objections
      • Item icon Objecting to an application for certificate of appointment
        A person can notify the court of a proposed challenge by filing a Notice of Objection, form 75.1 before a certificate of appointment is issued. This ensures the objector is notified and can approach the court before a Certificate of Appointment of Estate Trustee is granted: r 75.03(1) of ...

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      • Item icon Letter to objector's lawyer for details
      • Item icon Letter to client regarding the notice of objection
      • Item icon Notice of Objection
      • Item icon Notice that Objection has been Filed
      • Item icon Notice to Objector
      • Item icon Notice of Appearance - Form 75.4
      • Item icon Notice of Application for Directions
      • Item icon Notice of Motion for Directions
      • Item icon Notice of Withdrawal of Objection
  • Folder icon C. Gathering information
    • Folder icon Library of initial letters to asset holders
      • Item icon Initial letter to bank
      • Item icon Initial letter to corporation for debenture particulars
      • Item icon Initial letter to corporation or registry for share particulars
      • Item icon Initial letter to deceased's accountant
      • Item icon Initial letter to deceased's employer
      • Item icon Initial letter to health insurance company
      • Item icon Initial letter to insurance company requesting details of bonds
      • Item icon Initial letter to lender requesting mortgage details and transfer requirements
      • Item icon Initial letter to life insurance company for policy details
      • Item icon Initial letter to pension fund company
      • Item icon Initial letter to retirement home
      • Item icon Initial letter to ServiceOntario re licence and motor vehicle
      • Item icon Initial letter to stockbroker requesting portfolio details
      • Item icon Initial letter general cancellation of membership
    • Item icon Initial letter to creditor
    • Folder icon If required - Where the cause of death leads to compensation
      • Item icon Cause of death claims
        The cause of death may give rise to compensation or damages, for example, if death resulted from a motor vehicle or work accident.

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      • Item icon Online claim for survivors' benefits - WSIB
  • Folder icon D. Application for certificate of appointment of estate trustee with a will
    • Item icon Estate administration tax
      The amount of estate administration tax is paid as a deposit when filing the application: r 74.13 of the Rules of Civil Procedure. Tax is not payable where the value of the estate is under $50,000. The amount of tax payable on the estate is set out in s 2 of the Estate Administration Tax ...

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    • Item icon Application for a Certificate of Appointment of Estate Trustee With a Will
      Before applying for a Certificate of Appointment of Estate Trustee, the applicant must confirm that no other application or Notice of Objection has been filed, and that no later will has been deposited in the Superior Court of Justice. The court cannot grant a certificate until this is confirmed by ...

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    • Item icon Application for a Certificate of Appointment of Estate Trustee
    • Item icon Affidavit of Execution of Will or Codicil
    • Item icon Certificate of Appointment of Estate Trustee
    • Item icon Will cover sheet
    • Item icon Filing with the court
      The probate application and supporting documents can be filed with the court by email, regular mail, or in person. The instructions for filing an application by email are outlined in Part IV: Applications for Estates Certificates (probate) of the Consolidated Civil Provincial Practice ...

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    • Folder icon If required - Administration bond
      • Item icon Administration bond
        An administration bond might be required under s 35 of the Estates Act 1990. Section 36 sets out when security is not required. A bond is required under s 6 when the executor is not a resident of Ontario or elsewhere in the Commonwealth. Rule 74.11(1) of the Rules of Civil ...

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      • Item icon Bond - Insurance or Guarantee Company
      • Item icon Bond - Personal Sureties
    • Folder icon If required - Deferral of the payment of estate administration tax
      • Item icon Order in an Estates Proceeding
      • Item icon Affidavit
    • Folder icon Library of less common forms and affidavits
      • Item icon Affidavit
      • Item icon Clause - Affidavit of due execution by translator
      • Item icon Clause - Affidavit of searches for a will
      • Item icon Affidavit of Condition of Will or Codicil
      • Item icon Affidavit Regarding a Holograph Will or Codicil
      • Item icon Affidavit Verifying Estate Accounts
      • Item icon Notice of Application to Pass Accounts
      • Item icon Notice of Objection to Accounts
      • Item icon Notice of No Objection to Accounts
      • Item icon Renunciation and Consent
      • Item icon Request for Notice of Commencement of Proceeding
    • Folder icon Notice and consent
      • Item icon Notifying all beneficiaries of the application
        Before filing the Application for a Certificate of Appointment of Estate Trustee, a copy of form 74A, the will, and any attachments to the application must be served on all people entitled to share in the estate distribution. If the beneficiary is a minor, the notice is given to their parents ...

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      • Item icon Consent
        An applicant for a Certificate of Appointment of Estate Trustee With a Will who is not the executor named in the will must obtain the consent of the persons entitled to share in the distribution of the estate using form 74G. Any person not consenting to the application must be served with a ...

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      • Item icon Letter to beneficiaries giving notice of application
      • Item icon Letter to beneficiary entitled to apply enclosing notice and consent
      • Item icon Renunciation and Consent
    • Item icon Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee
    • Item icon Letter to court enclosing application with a will
    • Item icon Letter to client after grant of the certificate
  • Folder icon E. If required - Reseal
    • Item icon Reseal
      Confirmation by resealing of appointment of estate trustee with a will An estate grant issued in another jurisdiction is ineffective in Ontario. For example, if the deceased had assets in Alberta as well as in Ontario, a grant of probate made in Alberta cannot be used to deal with the Ontario ...

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    • Item icon Application for Certificate or Confirmation of Appointment
    • Item icon Certificate of Appointment of Estate Trustee
    • Item icon Bond - Insurance or Guarantee Company
    • Item icon Bond - Personal Sureties
  • Folder icon F. If required - Application for executor compensation
    • Item icon Executor compensation
      An executor is entitled to fair and reasonable allowance for the care, pain, trouble, and time expended in administering the estate: see s 23(2) and s 61 of the Trustee Act 1990. The allowance can be determined by a clause in the will or by a judge when passing the executor’s accounts. ...

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    • Item icon Agreement to pay compensation
      In practice, the award of compensation is usually fixed in the will or by agreement between the estate trustee and the interested beneficiaries. As the compensation payable to the estate trustee is a testamentary expense, the interested beneficiaries are those entitled to the residue of the estate ...

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    • Item icon Application for compensation
      The application for compensation is incidental to passing accounts. Ordinarily, an executor will present the accounts to the beneficiaries, who will then approve them. When any of the beneficiaries are a minor, mentally incapable, in an unascertained class, or they refuse to approve the accounts, ...

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    • Item icon Letter to client advising they are entitled to claim compensation
    • Item icon Letter to beneficiary - Estate trustee's claim for compensation
    • Item icon Passing accounts
      The court acts as an auditor when it passes accounts. It checks if the disbursements have been paid, that proper vouchers and receipts have been kept, and that the disbursements have been properly incurred. It is a detailed accounting process. Sections 23(1) and 61(3) of the Trustee Act ...

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    • Item icon Notice of Application to Pass Accounts
    • Item icon Affidavit Verifying Estate Accounts
    • Item icon Notice of No Objection to Accounts
    • Item icon Notice of Objection to Accounts
  • Folder icon G. Dealing with assets and finalizing accounts
    • Item icon Dealing with assets and finalizing accounts
      Accounting The maintenance of a working draft of a statement of account using a spreadsheet enables the monitoring and updating of the status of trust statements, assets received, and liabilities paid.

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    • Folder icon Verification of identity
      • Item icon Verification of identity attestation
    • Folder icon Library of letters and forms - Finalizing estate accounts and property
      • Item icon General collection letter
      • Item icon General reminder letter
      • Item icon Letter to creditor paying account
      • Item icon Letter to retirement home for payment
      • Item icon Letter to ServiceOntario for transfer of motor vehicle registration
      • Folder icon Bank
        • Item icon Letter to bank requesting account proceeds
        • Item icon Certificate of identity for bank withdrawal forms
      • Folder icon Real property
        • Item icon Land transfer tax
          Before the executors can sell or transfer title in real property, they must first transfer the title to themselves. Transfer of title to an executor is exempt from land transfer tax. Land transaction tax is not payable on a transfer by survivorship or to a beneficiary. However, when one of a number ...

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        • Item icon Capital gains tax
          Capital gains tax liability is assessed on the difference between an asset’s adjusted cost base and the sale price. The adjusted cost base depends on when the deceased acquired the asset as it is not only the purchase price but includes costs incurred because of the acquisition. For example, with ...

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        • Item icon Transfers of real property
          A survivorship application is used to transfer any jointly owned property to the surviving proprietor. Property owned solely by the deceased or as a tenant in common may need to be transferred into the executor’s name by transmission application before they can sell, transfer, or otherwise deal ...

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        • Item icon Online registration of survivorship or transmission - Teraview
        • Item icon ServiceOntario Electronic Registration Procedures Guide - Teraview
      • Folder icon Insurance, pension, and savings plans
        • Item icon Letter to deceased's insurer for payment
        • Item icon Letter to health insurance company for payment
        • Item icon Letter to Service Canada enclosing application for survivor benefits
        • Item icon Application for CPP Death Benefit
        • Item icon Application for Canada Pension Plan Survivor's Pension and Child(ren's) Benefits - Service Canada
        • Item icon Statutory Declaration of Common-law Union - Service Canada
        • Item icon Letter to pension or retirement savings plan on transmission
        • Item icon Letter to home insurance company cancelling home insurance
      • Folder icon Shares
        • Item icon Letter to corporation regarding debenture transmission
        • Item icon Letter to corporation regarding shares transmission
        • Item icon Example content - Affidavit of transmission
        • Item icon Transmission application - Corporation shares for deceased matters
        • Item icon Transfer of shares
    • Folder icon If required - Deeds of family arrangement
      • Item icon Deed of family arrangement
      • Item icon Deed of family arrangement - Life tenant and remainderman
    • Item icon Letter to client advising asset sold
  • Folder icon H. Distribution
    • Item icon Payment of debts
      Generally, all the deceased’s property is available to pay the estate’s debts, including funeral costs and other testamentary expenses. The executor must not unnecessarily diminish the estate by paying claims they are not bound to pay and should try to preserve specific bequests.

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    • Item icon Estate professional fees
      A practitioner can take part in the administration of an estate as an executor and as the estate’s lawyer. When a practitioner only acts as an executor, their compensation is calculated in the same way as those of other executors. As the estate’s lawyer, they send their fee accounts to the estate ...

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    • Item icon Estate Information Return
    • Folder icon If required - Notice to creditors
      • Item icon Creditor’s notice
        Publishing a creditor’s notice before distributing the estate’s assets will ensure that the executor is not liable for any claims not received at the time of the distribution: s 53 of the Trustee Act 1990. The Trustee Act 1990 does not prescribe how the notice must be published. Traditionally, ...

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      • Item icon Notice to creditors
    • Folder icon If required - Deeds of release and indemnity
      • Item icon Deed of release and indemnity - No certificate of appointment
      • Item icon Deed of release and indemnity - Distribution without notice of claims
      • Item icon Deed of release and indemnity - Distribution with notice of claims
      • Item icon Deed of release and indemnity - Executors compensation
    • Item icon Distributing the estate
      Interim distribution Depending on the circumstances of the estate, it may be appropriate to make an interim distribution to the beneficiaries of part of their entitlement.

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    • Folder icon If required - Interim distribution
      • Item icon Interim distribution
        Depending on the circumstances of the estate, it may be appropriate to make an interim distribution to the beneficiaries of part of their entitlement. The executor should only do so if they are certain that the estate retains sufficient funds to cover all liabilities and the final distribution: ...

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      • Item icon Letter to beneficiary on interim distribution enclosing statement for approval
      • Item icon Statement of assets, liabilities and distribution
    • Folder icon Distribution prior to the expiration of notice to creditors
      • Item icon Letter to estate trustee with final accounts and distribution - Prior to expiration of the notice to creditors
      • Item icon Letter to beneficiary on distribution - Prior to expiration of the notice to creditors
      • Item icon Statement of assets, liabilities and distribution
    • Folder icon Distribution after notice to creditors
      • Item icon Letter to client with final accounts and distribution - After the notice to creditors
      • Item icon Statement of assets, liabilities and distribution
      • Item icon Letter to beneficiary enclosing specific bequest
      • Item icon Letter to beneficiary with distribution of residue
    • Item icon Accounts
      Keeping proper accounts Executors must keep proper accounts to provide clear and accurate information to the beneficiaries: r 74.17 of the Rules of Civil Procedure. What is proper will depend on the nature of the estate. The minimum obligations are to:

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    • Folder icon If required - Library forms for accounts
      • Item icon Affidavit Verifying Estate Accounts
      • Item icon Notice of Application to Pass Accounts
      • Item icon Notice of Objection to Accounts
      • Item icon Request for Further Notice in Passing of Accounts
      • Item icon Notice of No Objection to Accounts
      • Item icon Notice of Non-Participation in Passing of Accounts
      • Item icon Affidavit in Support of Unopposed Judgment on Passing of Accounts
      • Item icon Notice of Withdrawal of Objection
      • Item icon Request for Costs (Person other than Children’s Lawyer or Public Guardian and Trustee)
      • Item icon Request for Costs (Children’s Lawyer or Public Guardian and Trustee)
      • Item icon Request for Increased Costs (Estate Trustee)
      • Item icon Request for Increased Costs (Person other than Estate Trustee)
      • Item icon Reply to Notice of Objection to Accounts
      • Item icon Judgment on Unopposed Passing of Accounts
      • Item icon Judgment on Contested Passing of Accounts
      • Item icon Order in an Estates Proceeding
  • Folder icon I. Finalizing the matter
    • Item icon Finalizing the matter
      Following the distribution of the estate, a final letter to the executor reporting on the matter and enclosing their documents should be sent to finalize the matter. If the firm is not acting on the administration, after obtaining the Certificate of Appointment of Estate Trustee, the documents and ...

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    • Item icon Letter to estate trustee finalizing the matter - Concise
    • Item icon Letter to estate trustee finalizing the matter - Extensive
    • Item icon Invoice recital - Probate
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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