The Executor and Probate of a Will

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This topic will discuss the duties of an executor or personal representative named in a Will.

It is your duty as executor to follow the instructions of the testator stated in the Will for the administration of the estate. If you are an executor residing outside of Alberta, you may have to post a bond to the Court as security for you to properly carry out your duties as executor. The cost of the bond is paid out of the estate. Your authority as executor begins on the date of death of the testator.

As executor, your main duties include:

• Probate the Will if necessary;
• Funeral arrangements;
• Collect and preserve estate assets;
• Advertise for creditors;
• Pay debts and taxes;
• Distribute estate property to beneficiaries.

You may refuse to act as executor even though you are named in the Will. Before you get involved in the administration of the Will make it known that you refuse the appointment. Where there is no executor named or the executor refuses to act, an executor can be appointed by the Court. A beneficiary may also be appointed executor by the Court. If there is no beneficiary able or willing to apply, the Public Trustee may be appointed.

Before you probate the Will, make sure you have the last Will of the deceased. Check where the deceased kept their important papers or call the family lawyer. If the estate is large, you may wish to hire a lawyer to do the probate (means official proving of a will) of the Will. You need not hire the same lawyer who drew up the Will although it may be desirable to do so. If the estate is small and the Will is simple, you may wish to do the work yourself. The Grant of Probate issued by the Court confirms that the Will is valid and that you have the authority to carry out your duties as an executor and to follow the instructions in the Will.

Probate is not required where the estate is small and uncomplicated. However, the land registry office, financial institutions and other advisors will often require that you show a Grant of Probate before they deal with any estate assets. This means that if the estate involves land, bank deposits or investments, it is likely that probating the Will is necessary.

In order to have a Will probated, you must submit an application for a Grant of Probate to the Court. The necessary forms for Probate are available from the Queen’s Printer Bookstore in Edmonton at 780-427-4952. You may call them from anywhere in Alberta by dialing 310-0000 first and then 780-427-4952.

Complete all the forms and notices required for your particular circumstances. Serve the documents on the beneficiaries, dependents and any other person who needs to be served on the probate application. File your documents with the Surrogate section of the Court of Queen’s Bench in the Judicial District where the deceased lived prior to his death. The clerk will advise you of the amount of the Court fees payable based on the net value of the estate.

The testator’s Will may provide some instruction for the funeral service. There is no legal obligation to follow such funeral instructions but executors usually do so. However, you must honour the deceased’s instructions to donate all or part of the body for medical research and you should immediately notify the deceased’s family of your intention to honour that request. If the funeral services are excessive in cost leaving little or no value in the estate to distribute to the beneficiaries, you could be held personally liable for the excessive funeral costs. A list should be made of all the assets and debts of the estate of the deceased. Include such things as employment benefits and unpaid wages. The property left over after the debts are paid is to be distributed according to the instructions in the Will. Some property will not form part of the estate to be distributed, as it will pass directly to a named beneficiary. For example, property or land that the testator owned with another person in joint tenancy title has a right of survivorship and passes directly to the other owner. Also, life insurance policies or RRSP that have a named beneficiary will pass directly to that beneficiary. Insurance companies of insurance policies held by the deceased should be notified. The company will let you know what documentation it requires before insurance proceeds are released to the beneficiary named on the policy.

Creditors must be notified of the estate distribution. If the estate is valued at $100,000 or less, then the advertisement needs to be placed only once. If the estate is more, then advertise at least twice (2) in one week. The advertisement can be placed in the local newspaper where the deceased usually lived. If the deceased did not live in Alberta, then place the advertisement in the place where most of the deceased’s property is situated. A final tax return with Revenue Canada for all income earned in the year of death must be filed. Once the tax return is filed and the taxes paid, obtain a “clearance certificate” from Revenue Canada as proof that all taxes have been paid.

As an executor, you are entitled to reasonable compensation for the administration of the estate. Keep a record of the time you spend in looking after the estate. You may wish to speak with the beneficiaries soon after the testator’s death to discuss an appropriate amount of compensation to avoid a dispute with them later. If you and the beneficiaries cannot agree, you may apply to the Court to fix the amount of your compensation.

Once all the outstanding debts and taxes are paid, the remaining assets may be distributed to the beneficiaries. Releases from the beneficiaries should also be obtained once you have distributed property to them. The Releases may be filed for Court records. If you distribute property to beneficiaries before known creditors and taxes are paid, you could be personally responsible for those debts. Property is generally distributed to the beneficiaries within one year from the date of the grant of probate unless the distribution to the beneficiary is to be held in trust for a certain time.

A trust is a complex obligation. You should speak to a lawyer if you are trustee for any beneficiaries. Your duty as a trustee is to hold and protect the gift for the beneficiary by investing the funds. The Alberta law authorizes only certain types of investments for trustees unless there are clear instructions in the Will for other investments. Ask your lawyer to ensure that you are acting within your powers and within the law.

A proper record must be kept of all receipts and disbursements for an accounting to the beneficiaries. The accounts must show the assets and debts of the deceased at the date of death, the compensation you were paid for acting as executor and the amount distributed to beneficiaries. If the beneficiaries do not consent to your accounting, you may apply to the Court for passing or approval of your accounts.