What are the steps to looking after an Estate?

When a person passes on, his or her assets become that person’s estate and are distributed according to that person’s will, or if there is no will, according to statute. The personal responsible for looking after the estate is called the Personal Representative (a newer term for executor) when appointed by a will, or the Administrator if appointed by a court (where there is no Will).

Before a Personal Representative can distribute or sell some assets of the estate, such as real estate, they first need a court order called a Grant of Probate (or Grant of Administration if there is no will). This Grant of Probate will allow the Personal Representative to access bank accounts, investments, and other assets, transfer or sell vehicles, and allow for the sale or transfer of real estate.

When a Personal Representative hires our firm, it is his or her duty to provide us with documentation and information about the estate. Once we have received the information we need, we use the new online lawyer application system to create and submit your application. Once approved, we will be notified and arrange to receive the Grant of Probate, which can be used to transfer or sell property, investments, bank account funds, and other assets. Usually, the assets of the estate are all sold and investments liquidated, and all the money is deposited to a bank account in the name of the estate.

The Personal Representative

A Personal Representative has special duties and responsibilities towards the estate and the beneficiaries. They must be careful not to mismanage the estate assets. They must also ensure all taxes and debts of the estate are paid. If there are problems with a Personal Representative’s management of the estate, they can be personally sued, so it is important to have a lawyer help and provide advice.

A Personal Representative is entitled to repayment of reasonable expenses paid on behalf of the estate. He or she is also normally entitled to a fee for administering the estate.

Securing the Estate

The first thing a Personal Representative should do is make sure that the estate assets are secure. They should arrange to forward all of the deceased’s mail to an accessible address, to make sure bills and debts are accounted for. The Personal Representative should also cancel all non-essential utilities to the deceased’s home, such as phone, cable, magazine subscriptions, etc. Essential services such as heat and electricity must be paid. The deceased’s credit cards, social insurance card, passport, driver’s license and health cards should all be cancelled. If there are any pets, the Personal Representative should make sure they are safe and cared for. The original copy of the Will should be found and kept in a safe place.

Compiling Information

After the estate is secure, the Personal Representative should start compiling the documents and information needed for the court application. The documents and information needed depends on the personal circumstances of the deceased and the type of application you need. If you choose to hire a lawyer, their fees are payable by the estate.

Submitting the Application

Once the Personal Representative has compiled all of the necessary information and documents, we create the application which is executed digitally by you, and the electronic package is submitted to the Court of King’s Bench Surrogate Court. The package will be reviewed initially by a court clerk and returned for revisions if necessary. If approved by the clerk, the package will then be submitted to a judge who may require more revisions or may then approve the application and issue a Grant of Probate.

If the estate is complicated, there are problems with the Will, or there is a dispute over the estate, it may be necessary to make a different “contentious” application to the court. It is highly advisable in these circumstances to retain a lawyer.

At the time the package is submitted, the Personal Representative must pay a filing fee based on the value of the estate. The current court filing fees (for either Grants of Probate or Grants of Administration) are

• $10,000 or less: $35

• Over $10,000 but not more than $25,000: $135

• Over $25,000 but not more than $125,000: $275

• Over $125,000 but not more than $250,000: $400

• Over $250,000: $525

If you have questions or need help, please contact us

What does an Executor or Personal Representative do?

An Executor (or the new term, Personal Representative) is responsible for distributing an Estate. This can be a quite complicated process and it is highly recommended that you speak to a lawyer to make sure you are proceeding properly.

The role of the Executor is to oversee the distribution of the assets of the Estate to the beneficiaries. This will require you to look after the finances and assets of the Estate, pay all taxes and expenses, provide an accounting, and distribute the Estate to the beneficiaries. If you do not do this properly, there can be legal implications. Executors can be sued for negligence or subject to court action if they take too long to deal with the Estate.

In most cases, it is necessary for the Executor to get a special court order in order to do their job. If the Deceased had a Will, the Executor must make an application to the Court for a Grant of Probate, and if the Deceased died without a Will, they must apply for a Grant of Administration. This court application process is done by submitting the appropriate paperwork to the proper court. If the paperwork is completely properly and it appears to the Judge that the Will is valid (or, if there is no Will, that you are the proper person to look after the Estate), the Judge will make a binding court order (the Grant of Probate or Administration). The Executor can then use the court order to transfer property at Land Titles, change registration for vehicles, access bank accounts and investments, and do other things needed to finalize the estate.

It is important for the Executor to do their job properly, as mistakes can create legal liability. Executors normally hire a lawyer to deal with the paperwork such as the court application and the accounting. Lawyer fees are normally paid by the Estate.

If you want to know more about the duties and role of Executor, click the link here for our free Probate Guide

What is a Personal Directive?

A Personal Directive is similar to a Power of Attorney. It only takes effect if you lose mental capacity, and appoints a person (called your Agent) to make decisions for you about your healthcare, treatment, activities, and where you reside. A Power of Attorney deals with your finances, while a Personal Directive deals with your “person”.

If you lose mental capacity, the Agent and a healthcare provider will complete the paperwork in order to certify that you are mentally incapable of looking after yourself. The Agent will then step in to discuss treatment or other medical decisions with your doctor. When making a decision for you, the Agent must try to consult with you, even if you are considered not entirely competent.

The Personal Directive can include some specific instructions for your Agent to follow. Common instructions include the direction that you do not wish to be kept alive by artificial means, and want life support removed if it is only prolonging a natural death. You can also include instructions regarding pain medications and treatments which you may want administered. It is important that you talk to a lawyer so you know all the options and ensure the Personal Directive is properly worded.

What is a Power of Attorney?

A Power of Attorney is a legal document that appoints someone, called an Attorney, to look after your financial affairs. This document can be made for a specific purpose, such as signing Land Titles documents or effecting a sale of property, or can be made for a “general” purpose, meaning you appoint someone to look after all of your finances and assets.

Usually, a “general purpose” Power of Attorney is part of an Estate Plan. In most cases where the person making the Power of Attorney (called the Donor) is healthy and mobile, this power and authority only comes into effect if you lose mental capacity. If that were to happen, the Attorney and your medical provider would sign the Power of Attorney certifying that you have lost the mental ability to deal with your finances, and only then the Attorney would have the lawful authority to deal with your finances. At that point, the Attorney could access your bank accounts and investments, buy or sell your home, or otherwise do anything that you would do. The Attorney must ensure that any decisions he or she make is in your interests, and they deal with your assets and finances in a reasonable manner.

In circumstances where a Donor is older and has mobility problems, they may want the Power of Attorney to be effective immediately. This would appoint the Attorney to look after the Donor’s finances even though the Donor is still mentally competent. These types of Powers of Attorney are done for convenience, usually to help people who find managing their finances difficult due to age or limited mobility.

The Power of Attorney most often used in Estate Planning is “Enduring”, a legal term meaning that it stays in place even if a person loses mental capacity. If it is an Enduring Power of Attorney, the Attorney’s authority only ends when the Donor dies, if the Donor changes or renounces the Power of Attorney (while mentally competent), or by Court Order.

What happens if I don't have a Will?

If you pass on without a Will, your Estate (your assets and finances remaining after payment of all debts and taxes) will be distributed according to the law of Intestacy. In Alberta, this legal statute is called the Wills and Succession Act. This law distributes the estate based on a list of people who have priority to gifts from the Estate. For example, the following is a brief list of the ways an Estate may be divided if there is an intestacy:

• If the Deceased had a surviving Spouse or Adult Interdependent Partner, then 100% of the Estate will go to the Spouse or Partner;

• If the Deceased had a surviving Spouse (or Partner) AND children from a different relationship (meaning that the children are not the Spouse’s biological children), the Estate is divided 50% (or $150,000.00, whichever is greater) to the Spouse and the remaining 50% divided among the Deceased’s biological children;

• If the Deceased died with both a surviving Spouse and a Partner, the Estate is divided equally among the Spouse and Partner;

• If the Deceased died with no Spouse or Partner, then the Estate is divided equally among his or her surviving children;

• And so on…

The rules provide for every possible scenario to ensure that the Estate will go to some living relative, and can be quite complicated in certain circumstances. If the Deceased died with no relatives at all, then the Estate could be taken by the government.

It is important to have a properly completed Will in order to ensure your money and property gets distributed according to your wishes. Another important concern is the appointment of a Personal Representative to look after the Estate. If you die without a Will, then the Wills and Succession Act prioritizes a list of people who can apply to the Court to administer the Estate. This can be a problem where the person with priority fails to apply, or if he or she applies and is negligent in administering the Estate.

The benefit of a properly completed Will is that it will make sure your property is distributed according to your wishes, as well as ensuring that someone you trust is in charge of administering and distributing your Estate.

What is a Will? And what are the parts of an Estate Plan?

There are 3 parts to an estate plan: the document that takes effect upon your passing (the Will), and the documents which take effect if you lose mental capacity (the Power of Attorney and Personal Directive).

A Will is a document which appoints a Personal Representative (the new term for Executor) to administer and look after your Estate. It also includes information about how your Estate is to be divided among your Beneficiaries (the people or organizations that receive gifts from the Estate).

A Power of Attorney appoints an Attorney to look after your finances, meaning your assets, investments, and debts.

A Personal Directive appoints an Agent to look after your person, meaning they determine where you reside, what kind of care and treatment you receive, and what activities you take part in. This document can also include specific instructions about your end of life care, like whether or not you wish to be kept alive by artificial means (such as a ventilator).