In Calgary, people who write a will usually name a personal representative (also known as an executor or executrix) to carry out the task of estate administration.
Fortunately, this considerable responsibility is usually discussed with the individual beforehand, so they know what to expect. However, some personal representatives are not prepared, not capable, or not able to commit the necessary time to estate administration.
This can lead to delays for beneficiaries or other problems.
Fortunately, you don’t have to handle this alone. If you have been named as a personal representative in Calgary and need assistance, an experienced estate administration lawyer from Vest Estate Lawyers can help you with the following:
What is the Estate Administration Act of Alberta?
Alberta’s Estate Administration Act governs the estate administration tasks performed after a person dies in the province.
Enacted in 2015, it was designed to make the duties and responsibilities associated with estate administration easier to understand and follow.
The Act grants the same legal powers to a personal representative (PR) as if the deceased person was still alive. He or she can administer the estate according to the laws outlined in the Act. Duties must be performed honestly and in accordance with the deceased’s wishes.
The Act also makes provisions for if no will has been left and other matters. It includes the following:
- Recognition that people are free to do as they wish with their assets and for their decisions to be respected after all legal obligations are met
- An assumption that a deceased person would want family to have his or her property if no will is left
- A provision for dependent family members to receive adequate support from a deceased person’s estate
- A provision for beneficiaries to hold the personal representative legally accountable for his or her actions
Estate administration checklist for Calgary residents
As well as providing general guidance for personal representatives, Alberta’s Estate Administration Act also provides an estate administration checklist.
This comprehensive list of duties is a useful starting place for anyone named as a personal representative and who is just getting to grips with the responsibilities that it entails.
Following is a brief overview of the basic duties:
- Locate the last will: the first step is to locate the last will and testament, which may be in safe-keeping with a lawyer, with the spouse of the deceased or in a safe deposit box.
- Registration of death: this is not necessarily the duty of the personal representative (the spouse or next of kin may do it) but you will need a copy of the death certificate.
- Funeral arrangements: the PR must arrange the funeral of the deceased – usually following instructions left in the will, but these are not legally binding.
- Apply for a grant of probate: a will must generally be probated in Alberta before a PR can distribute assets. This is a court process, usually initiated with the help of an estate administration lawyer.
- List assets, debts and beneficiaries: you must review the deceased’s tax returns, pensions plans, insurance benefits, title documents, etc. and create a list of assets and debts as well as the beneficiaries for each asset.
- Secure the deceased’s assets: valuables may need storage in safety deposit boxes and vehicles may need storage in a garage, but how assets are secured will depend greatly on the nature of the assets left.
- Write a public notice to creditors: you may choose to place an advertisement (once or twice, depending on the value of the estate) in the local newspaper to notify creditors or other parties who may want to claim against the estate. This protects you against liability.
- Notify beneficiaries: the PR must send a formal notice to anyone who receives an inheritance or who has a claim to the estate.
- Request release of claims: beneficiaries have up to six months after probate is granted to contest a will. Unless you obtain release of claims from beneficiaries, you will have to wait for this period to pass before distributing assets.
- Locate, gather and sell assets: the deceased’s assets (property, vehicles, bonds, etc.) must be transferred to you as the PR before they can be passed to beneficiaries.
- Pay debts and expenses: taxes, debts, funeral expenses, legal fees and so on should all be paid by the estate. You will need a clearance certificate from Canada Revenue Agency before distributing assets. If the deceased’s estate funds do not cover the costs, you may need legal advice to avoid personal liability.
- Distribute assets to beneficiaries: cash, gifts, and property can now be distributed. Get receipts for everything passed on and, depending on the will, you may also need to set up and oversee a trust.
- Financial statement: the PR must usually prepare a financial statement for beneficiaries, showing income, expenses, assets, debts, and the distribution of the estate.
- Close the estate account: the final duty of the PR is usually to close the estate bank account and prepare a final report for beneficiaries.
A personal representative must keep meticulous records of all actions taken with the estate – transfers, transactions and so on – both for protection from liability and to ensure that you are fully reimbursed for any out-of-pocket expenses incurred.
What if there is no will or Personal Representative?
A person who passes away without a will is known as intestate. No personal representative is named and the distribution of inheritances is placed on hold.
The Surrogate Court of Alberta will need to intervene to appoint an administrator in such a case. Until a Grant of Administration is issued, nobody is authorized to distribute the estate.
Under Alberta law, the assumption is that a deceased person would have intended for their property to go to family members after they die.
If you are a family member, you can apply for a Grant of Administration and one of our experienced estate administration lawyers can assist with this process.
What if no personal representative is named or they fail in their duties?
Some wills do not name a personal representative – or the PR named in the will is unwilling or unable to take up the role.
When this happens, the Surrogate Court of Alberta issues a Grant of Administration with Will Annexed. This appoints an administrator to execute the will according to the stated wishes of the deceased.
If a personal representative fails to fulfill their duties, is too slow in distributing assets, fails to notify the right people, or continually makes mistakes and disrupts the estate administration process, they may need to step down or be removed.
Another person, usually a beneficiary, may apply to the court to take on the role.
Contact Our Estate administration Lawyers Today
The lawyers at Vest Estate Lawyers can help you administer a loved one’s estate efficiently and effectively so that your actions don’t create legal issues.
Contact us directly online or by phone for a confidential one-on-one consultation with one of our estate lawyers.