Acting as both tutor and estate liquidator or trustee

LIQUIDATION of a succession (the word often used in Québec for an estate) refers to the series of operations undertaken after a person's death to determine what their assets are, once their debts have been paid. Broadly speaking, the liquidation process involves three steps: compiling an inventory of the deceased person's assets and debts, temporarily administering their estate, and distributing the property to the heirs.

Sometimes the legal or dative tutor is also responsible for some of the child's property as an estate liquidator or trustee.

The way to administer

The portion of property corresponding with this mandate should be managed by the tutor in their capacity as liquidator or trustee, not in their capacity as tutor.

They should therefore undertake a separate administration from that they perform as tutor (make separate investments, keep separate accounts, etc.) and act based on the obligations and powers corresponding with each of the functions performed. In practice this means:

they will exercise powers of simple or full administration over the property in the estate or trust, depending on the clauses in their deed of appointment; if the powers are not specified, the provisions of the Civil Code of Québec apply;
as trustee or liquidator, they do not have to report on their administration to the Curateur public or the tutorship council, but are obliged to act in the child's interests, and show the same prudence, diligence, loyalty and honesty as a tutor; they also have to produce a final report.

Example

Peter Smith dies in a road accident. The Société de l'assurance automobile du Québec pays a $30,000 indemnity in favour of his 13-year-old child.

The late Mr. Smith's will appoints the child's mother as liquidator of the estate.

NOTE: Once the estate is liquidated, the property bequeathed to the child is added to the child's patrimony. As legal tutor, the mother must now include it in the administration report she gives to the Curateur public and the tutorship council. However, she no longer has to keep the accounting separate.

The $30,000 is not part of the estate. The mother acts a legal tutor in managing this amount. She has to give an administration report to the Curateur public and the tutorship council she is obliged to set up, because the indemnity exceeds $25,000.
The mother does not have to report to the Curateur public about her administration of property that is part of the estate as long as it has not been remitted to the heirs, because she is acting as liquidator.
She must administer the two types of property separately, continuing to be guided by the principles of prudence, diligence, honesty and loyalty.