Probating Estates
Losing a loved one is a sad and difficult time. Consulting with a lawyer can help ease the strain of maneuvering through the probate process and provide you with valuable advice.
If a deceased person (testator) has a Will, this is known as a testacy. If the testator dies leaving no Will, this is known as an intestacy.
The Will names a personal representative or joint personal representatives (sometimes called an executor) to carry out the wishes in the Will. If a personal representative named in the Will does not wish to act, he or she can sign a renunciation. If there is no Will, there is a list of persons in the Intestate Succession Act who have priority to act as the administrator (sometimes called an executor) of the estate.
In both a testacy and an intestacy, the personal representative/administrator may need to apply for a grant from the Probate Court in order to determine the assets and debts of the estate, open an estate account at the bank to pay outstanding debts from the estate funds and distribute the assets of the estate.
When the personal representative/administrator hires a lawyer to probate the estate, the lawyer is known as the proctor. The legal costs to probate an estate consist of legal fees, HST, fees paid to the Royal Gazette to advertise the estate for a six-month period and probate taxes, which are calculated based on the value of the estate. If the estate owns real estate, there will be additional costs relating to the property.
The estate must be advertised in the Royal Gazette for a period of six months in order to give notice to interested persons and creditors, who can then file a claim at the Registry of Probate.
If the estate is an intestacy (having no Will) and the administrator is not the sole beneficiary, a surety will be required. A surety signs a bond stating he/she has unencumbered assets worth 1.5 times the value of the estate and binds himself/herself to the Registrar of Probate in that amount in the event the executor does not carry out his/her duties to the estate. If the estate value is $100,000 or less, one surety is required. If the estate value is over $100,000, two or more sureties combined are required.
At the end of the six-month advertising period, if no claims have been filed at the Registry of Probate, the personal representative/administrator must have had the final income tax returns prepared for the estate in order to obtain a CRA Clearance Certificate, as well as pay the estate’s debts and have the beneficiaries agree to the amount of the executor’s commission. Executor’s commission is up to a maximum of 5% of the estate value as at the date of death of the testator.
Prior to disbursing the estate to the beneficiaries, the personal representative/administrator should have the beneficiaries sign releases and consents. If there are creditors that the personal representative/administrator has not settled with, or there are beneficiaries that will not sign a release and consent-accounting not required, the personal representative/administrator can make application to have the accounts passed by the Registrar of Probate and be released as personal representative/administrator.
Being a personal representative/administrator is an important job. A lawyer can help walk you through the probate process to simplify your job as executor.
Please note this is not legal advice for your specific situation.
