Administration of the Estate

Question 1

2 courts in Wills Law

Answer 1

Court of Probate + Court of Construction

Question 2

Probate Court

Answer 2

Where to go when proving/disproving a will or mounting legal challenges concerning the validity of a will. Determines if will is valid.

Question 3

Court of Construction

Answer 3

Deals with interpretation of ambiguous passages in wills. Will itself is valid just interpreting.

Question 4

Executor

Answer 4

A named estate trustee (personal representative) in a will. All property in will automatically vests to you when testator dies (you are owner in trust- hold legally for the benefit of deceased estate)

Question 5

Administrator

Answer 5

Executor appointed by a court when one not named or executor renounces their position or otherwise cannot act as executor (will) OR when someone dies intestate vests with court and they name someone through application or suggestion.

Question 6

Who cannot be an executor?

Answer 6

• Minors (under 19 in NB),
• persons with personal claims against the estate,
• bankrupt persons,
• person with mental health disabilities that with interfere,
• persons who murder testator,
• persons in jail.
• Should be in province but exceptions can be made (complicated though)

Question 7

Who can bring an action to remove or qualify an executor?

Answer 7

Anyone effected by a will

Question 8

Do executors need to accept the position?

Answer 8

No, they need not accept and can say no/ resign at any time even after testator dies (further you get into it though harder it becomes and may have to pay legal fees)

Question 9

When no executor/ will with whom does the property vest?

Answer 9

Property vests with the court until administrator is appointed.

Question 10

Doctrine of relation-back

Answer 10

If certain things had to be done by a date (ex: mortgage) but no administrator at the time, if when they are named they deal with it promptly they will not face same rules as ordinary person.

Question 11

Who is qualified to be an administrator?

Answer 11

• Spouses (but not ex-spouses), next-of-kin, parents, siblings.
• Not limited to these people,
• Courts can appoint a corporation (i.e. bank) if the preferred administrators are unable to do it.
• The same people who can’t be executors, cannot be administrators.

Question 12

Why are common law spouses often not appointed as administrator?

Answer 12

Because they have a claim. In intestacy will likely file a dependance relief claim.

Question 13

What do people appointed administrators have to do?

Answer 13

People who are appointed to be admin of estate have to file a bond (security deposit that you put with the court because you then get all the estate).

Question 14

It’s a tough job to be administrator why would anyone apply?

Answer 14

If no one steps forward the court appoints a corporation (bank) which charges a lot, thus reducing everyone elses shares

Question 15

When applying to be admin what do you have to file?

Answer 15

Notice to all next of kin and evidence of those that have priority above you renouncing appointment

Question 16

Grant of probate

Answer 16

Proving a will in solemn form or common form. Probate deals with validity.

Question 17

Solemn form

Answer 17

There is a real issue to be addressed (person raised issue, met threshold evidence, need to have a trial)- uncommon

Question 18

Common form

Answer 18

No trial. File will at court to get a certificate of probate

Question 19

Do all wills require probate?

Answer 19

• No, important because to probate costs money.

- Don’t need to probate to have authority as executor (will does that)

Question 20

What is the real reason an executor would need to probate?

Answer 20

To obtain cooperation of 3rd parties who have physical possession of assets contained in the will. Ex: bank holding money.

Question 21

When do you absolutely need probate?

Answer 21

• When real property left in a will (need for land registry)
• Subject to litigation
• If there is a matter of construction
• If executor is being sued

Question 22

Cost Awards

Answer 22

Those who bring frivolous and vexatious claims against an estate can have costs awarded against them

Question 23

What about executor/ administrator costs?

Answer 23

• Generally fully indemnified, state will pay legal bills, for any legal expenses they incur during their role (if they get sued or have to renounce for good cause)
• Any improper behaviour or forced removal will be incurred by them personally

Question 24

Passing of accounts

Answer 24

• Court ordered or voluntary disclosure of expenditures made by an executor either personally or out of the estate.
• Keep meticulous records of expenditures for taxes/fees.
• To be compensates as an executor have to file passing of accounts.

Question 25

What will filing a passing of accounts trigger?

Answer 25

Motion for probate.

Question 26

Do administers have to pass accounts?

Answer 26

Yes

Question 27

Large and small estate passing timeline?

Answer 27

Large typically once every two years, small at the end

Question 28

Personal Compensation for Executors

Answer 28

• Have the right to be compensated for work
• Will typically outlines compensation (if it does, sum is non-negotiable)
• If does not say ex’s can apply for compensation

Question 29

Toronto General Trust Corp

Answer 29

Lays out how to determine amount of compensation for executors:

• Magnitude of estate
• Care and responsibility springing therefrom
• Time taken
• Skill and ability displayed
• Success which has attended their administration

Question 30

What if executor doesn’t deal with taxes?

Answer 30

If give away all money and don’t deal with tax, personally on the hook for taxes

Question 31

Solicitor fees when it comes to an estate

Answer 31

• Normally determined on the passing of accounts (beneficiaries/ executors can challenge amount at this time)
• Judge can vary the bill

Question 32

Who is the solicitors client?

Answer 32

Executor, not the estate

Question 33

How much can a solicitor charge?

Answer 33

On the normal quantum meruit basis. Cannot charge by percentage of the estate unless the estate trustee and solicitor have agreed the solicitor may do so.

Question 34

During passing of accounts

Answer 34

Can also challenge if they think the work a lawyer is doing is unnecessary or bad

Question 35

Can you be both lawyer and executor?

Answer 35

• Yes, lawyer in charge of court stuff, executor distributing.
• If both, even more meticulous cannot bill for time spent on one under name of the other

Question 36

Duties of personal representatives

Answer 36

(1) Advertising the death (not obituary)
(2) Payment of debts
(3) Bodily remains
(4) Distribution of estate

Question 37

What is personal compensation for executors based on?

Answer 37

It is not regulated by the costs tariffs, the amount is determined by the court – “Fair and reasonable”. Normally never amounts to more than 5% of the value of the estate.

Question 38

What if on advertisement of death a creditor fails to come forward?

Answer 38

Protects executor

Question 39

Advertising the death

Answer 39

Not an obituary. Gives notice to creditors/ ask whether anyone has claims against the estate.

Question 40

Payment of debts

Answer 40

• File/pay income taxes
• Pay any secured debts
• Pay any funeral expenses
• Legal claims against estate
• Expenses of administering estate
• Unsecured debts
• Anything related to disbursement of assets (once rest are paid)

Question 41

Executors year

Answer 41

• Year to get your shit together without any claims. Hire lawyers, accountants, etc.
• Can’t take too long though, provincial legislation for a beneficiary to get a vesting order

Question 42

What if insufficient money to pay these things?

Answer 42

Provinces have a list that ranks them

Question 43

Dealing with bodily remains

Answer 43

• Not bound to instructions in a will that are unreasonable or disproportionately costly.
• But, ex: if request cremation have to have good reason to say no

Question 44

Distribution of estate

Answer 44

Estates that are a just a house, and the will is 20 legacies, obviously, you need to sell the house first. Before selling property be very familiar w/ the power of sale rules in the jurisdiction.