Frequently Asked Questions - Probate and Estate Administration

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What should I know about administering an estate with or without probate?

​The Estate Administration Act, S.A. 2014, c. E-12.5 [the "EAA"] applies and sets out the rules for new grants or probate, existing grants of probate and estates being administered without a grant of probate and sets out in detail how estates are to be administered in Alberta.  There are other applicable Laws, such as the Surrogate Rules of Court, but in the post we are going to address the EAA and what estates it applies to and who is required to comply with the Act.
 
The EAA is important particularly because its sets forth, in conjunction with the Surrogate Rules of Court and other acts:
  1. The role of the Personal Representative including the responsibilities and obligations of a personal representatives [general obligations, core tasks, schedule of activities];
  2. Notice requirements and the interested parties to receive notice of the estate and its administration;
  3. The authority and power of the Personal Representative to attend the applicable responsibilities and obligations in the administration of an estate including administering estate property, dealing with estate obligations and assets, distributing property and accounting and expenses; and
  4. Technical requirements in applying for a grant, administering the estate and technical and court matters.
and whether you are a Personal Representative, beneficiary, or any other party with an interest or claim in the estate, it is important to understand whether you or the estate you are dealing with is caught by the EAA or not.

1.  EAA applies to all estates in Alberta BOTH AFTER June 1, 2015 AND Outstanding Grants from BEFORE June 1, 2015.

Section 2 of the EAA provides that, subject to section 51 addressed below, the Act applies to the estate of a deceased in the following circumstances:
  1. If on the date of death the deceased was resident in Alberta;
  2. If on the date of death the deceased owner property in Alberta; or
  3. The Court is satisfied a grant is necessary.

So, from June 1, 2015 and after, the new EAA will apply to all Personal Representatives.

What is interesting and must be noted, is that section 2 is subject to section 51.

Section 51 of the EAA provide that the Act is to apply to EXISTING GRANTS, so the EAA applies to all Personal Representatives after June 1, 2015 whom have not concluded administering the estate.

It is important to note that if you are a Personal Representative and administering an estate in which you obtained a Grant of Probate or Letters of Administration BEFORE June 1, 2015, you are bound by the new EAA and must comply with it.

So BOTH potential Personal Representatives and existing Personal Representatives MUST comply with the Act.

Over time this will become less of a concern as estates where probate before June 1, 2015 as the administration of those estates should properly conclude  over time.

2.  EAA applies to all Alberta estates BOTH when applying for a Grant of Probate or Letters of Administration.

Firstly, it is important note the difference between dying “testate” [with a will] and dying “intestate” [without a will].

“Probate” is the official proving of a will by a court of competent jurisdiction, so in the circumstances where the deceased is “testate”, that is dies with a will, the Personal Representative named in the will can apply to court for a grant of probate, proving the will and authorizing the Personal Representative to administer the estate pursuant to the will and applicable laws.

In circumstances where the deceased is “intestate”, that is dies without a will [or the will for whatever reason does not apply] certain individuals can apply to the court for a grant of administration [or letters of administration] authorizing the individuals named in the grant to administer the estate according to the applicable laws.

The EAA defines “grant” as follows:
“1(f)     “grant” means the Court’s grant of the authority to administer an estate as provided for in Part 3 and includes
(i)        a grant of probate,
(ii)       a grant of administration, or
(iii)      a resealed or ancillary grant of probate or administration;”

Accordingly, as the definition of “grant” includes BOTH a grant of probate and grant of administration [letters of administration], and accordingly the EAA applies to deceased that die intestate or testate.

3.  EAA applies to all Alberta Estates BOTH when you apply to court for a Grant [Grant of Probate or Letters of Administration etc.] and when you do NOT apply to court for a Grant. 

The new EAA was specifically drafted to ensure that it applies to all Alberta estates whether or not the Personal Representative applies to Court for a Grant [Grant of Probate or Letters of Administration etc.], and it starts with the definition of “personal representative” in the EAA which states as follows:
 “1(g)   “personal representative” means an executor or an administrator or judicial trustee of the estate of a deceased person and includes a personal representative named in the will whether or not a grant is issued;

The highlighted portion makes clear that a personal representative, executor or executrix in a will and administrator [if deceased died intestate – no will] is caught by the EAA.

While not unexpected that a Personal Representative applying to Court for a Grant of Probate or Letters of Administration [or as set forth above those with an existing Grant] would be subject to the EAA.

This is a very significant change for Personal Representatives that were NOT intending to apply to Court for a Grant of Probate or Letters of Administration, but perhaps intending to more “informally” administer the Estate, because whether or not you “informally” [without a Grant] or “formally” [with a Grant] administer an estate the EAA will apply.

For instance, for Personal Representatives that were NOT intending to apply for a Grant and “informally” administer the estate, the EAA requires notice to be provided certain interested parties in accordance the Surrogate Rules of Court as follows:

Personal representative’s notice when acting without a grant
10(1)   A personal representative named in a will who acts in the administration of the estate without applying for a grant must provide, in accordance with the Rules,
(a)        to the beneficiaries of the deceased person, the personal representative’s notice to beneficiaries described in subsection (2),
(b)       to any family members of the deceased person, an attorney, a trustee, the Public Trustee or a guardian, on whom a notice would be required to be served under section 11(1) on application for a grant, a personal representative’s notice to family members,
(c)        to a spouse of the deceased person on whom a notice would be required to be served under section 11(2) on application for a grant, a personal representative’s notice to a spouse, and
(d)       to the Public Trustee and to the other persons referred to in section 12, as applicable, a personal representative’s notice, as required by the Rules.
(2)       The personal representative’s notice to beneficiaries must
(a)        identify the deceased person,
(b)       provide the name and contact information of the personal representative,
(c)        describe the gift left to the beneficiary in the will or refer to the applicable provisions of the Wills and Succession Act or the Intestate Succession Act,
(d)       state that all gifts are subject to the prior payment of the deceased person’s debts and other claims against the estate, and
(e)        include any other information or documents required by the Rules.


It is important to note that the such Personal Representatives that are informally administering an estate [without probate] are  required to comply with other provisions of the EAA as well.

Accordingly, it is important that all Personal Representatives [testate, intestate, with and without a grant] be aware of and comply with the provisions of the EAA, particularly as the EAA in conjunction with the Surrogate Rules of Court and other acts, provides for the following:
  1. The role of the Personal Representative including the responsibilities and obligations of a personal representatives [general obligations, core tasks, schedule of activities];
  2. Notice requirements and the interested parties to receive notice of the estate and its administration;
  3. The authority and power of the Personal Representative to attend the applicable responsibilities and obligations in the administration of an estate including administering estate property, dealing with estate obligations and assets, distributing property and accounting and expenses; and
  4. Technical requirements in applying for a grant, administering the estate and technical and court matters.

While the new EAA requires a Personal Representing intending to “informally” administer the estate without a Grant to provide notice, it does not preclude from a Personal Representative administering the estate without a Grant [and avoiding the cost and expense of applying to court and obtaining a Grant of Probate or Letters of Administration] if it is appropriate for the Personal Representative to do so.

The  EAA and its broad application to administration of estates “informally” [without a Grant] is an important development to the Laws in this area, and in further posts in this series we will consider the following:
  1. Powers to administer an estate and distribute assets in Alberta under the EAA.

If you are an executor, executrix or Personal Representative carrying out your responsibilities under a will or Grant of Probate or Letters of Administration, or named as one under a will and/or considering applying to court for a Grant of Probate or Letters of Administration then you must be aware of and comply with this new Act.

Please contact us to see if we can be of assistance to you in navigating your rights and responsibilities as a beneficiary, personal representative or in your estate planning.

This is not legal advice and does not create a solicitor-client relationship, please see our terms of use for our website and blog.

What are the obligations of the Personal Representative [Executor or Executrix] under the Estate Administration Act

​The Estate Administration Act, S.A. 2014, c. E-12.5 [the "EAA"] applies and sets out the rules administering estates in Alberta.  There are other applicable Laws, such as the Surrogate Rules of Court, but in the post we are going to address the EAA and the role of the Personal Representative [also known as the executor or executrix].
 
In this particular post we examine the role of the Personal Representatives under the EAA, and in particular the following:
  1. General Obligations of a Personal Representative;
  2. Core Tasks and Activities included in core tasks; and
  3. Requirement to give notice to interested parties;
  4. Importance of compliance with the EAA.

1.  General Obligations of a Personal Representative

The EAA sets forth 4 general duties of a Personal Representative as follows:

“General duties of a personal representative
5(1)     A personal representative must
(a)        perform the role of personal representative
(i)        honestly and in good faith,
(ii)       in accordance with the testator’s intentions and with the will, if a valid will exists, and
(iii)      with the care, diligence and skill that a person of ordinary prudence would exercise in comparable circumstances where a fiduciary relationship exists,
and
(b)       distribute the estate as soon as practicable.”

A Personal Representative is a fiduciary [or trustee] with the obligation of utmost loyalty to administer the estate and the assets in the estate in accordance with the will, if any, and applicable legislation.

The 4 general duties set forth in plain language the fiduciary role and duties of a Personal Representative, and as Personal Representatives have always been considered fiduciaries, the EAA codifies these obligations setting them out in legislation, and in doing so the legislators have attempted to perhaps clarify and make access and compliance with these obligations easier for the general public.

One further point is that section 5(1)(b) requires distribution “as soon as practicable” which is of importance, because it replaces the “executor’s year” set forth in the Devolution of Property Act which permitted an interested beneficiary to make an application to require the conveyance [transfer] or sale within one year of the date of grant of probate or letters of administration of probate.

The operation of Section 5(1)(b) is interesting, because it removes the presumptive right of a beneficiary to make an application to compel the transfer [conveyance] or sale of real property [land] if it is not done so within one year, but replaces the one year with an undefined time period of “as soon as practicable” which presumably may be less than a year or more than year depending upon the circumstances and is not limited to real property [the Devolution of Real Property Act is limited to real property].

2.  Core Tasks and Activities included in core tasks

The EAA sets forth 4 core tasks of a Personal Representative in administering an estate as follows:

"Core tasks
7(1)     The core tasks of a personal representative when administering an estate are
(a)        to identify the estate assets and liabilities,
(b)       to administer and manage the estate,
(c)        to satisfy the debts and obligations of the estate, and
(d)       to distribute and account for the administration of the estate.
(2)       The core tasks referred to in subsection (1) may include, but are not limited to, the activities set out in the Schedule.

The core tasks set out in the EAA are a codification of pre-existing responsibilities of the Personal Representative.

The Schedule of Core Activities under the EAA is set out at the end of this blog, and while it is similar to the activities listed in Schedule 1 Table of Legal and Personal Representatives Compensation in the Surrogate Rules of Court it is not identical with the EAA Schedule of Core Activities setting forth some “new” activities, including the following:
  1. The requirement to create and maintain records;
  2. The requirement to actively report and communicate with the beneficiaries about the administration and management of the estate on an ongoing basis;
  3. Clarification and listing of “online accounts” as an estate asset and liability, as the case may be;
  4. Other and more detailed activities.
and while some of these activities are “new” in that they were not previously listed in legislation or the Surrogate Rules of Court, they did form a part of reasonable, prudent and recommended practices of a Personal Representatives exercising their role.

The foregoing is a summary of some of the provisions of the EAA that apply to the obligations of a Personal Representative, but is not an exhaustive list and this post a summary rather than a comprehensive review of the legislation, so please feel free to contact us respecting the application of the EAA to your particular facts and circumstances.

While the EAA sets out the duties, core tasks and activities for which the Personal Representative is responsible for, and the EAA also sections that provide for the corresponding power and authorization for a Personal Representative to attend to these responsibilities which we will explore in a further post in this series.

3.  Requirement to give notice to interested parties. 

The requirement to give notice to beneficiaries and interested parties is located in Part 2 of the EAA [sections 9 to 12].

This is not a new requirement, except as set forth in our prior post on who is caught by the EAA, section 10 requires Personal Representatives “informally” administering an estate with out a Grant of Probate or Letters of Administration to provide notice.

4.  Importance of compliance with the EAA. 

It is of utmost importance that a Personal Representative comply with EAA, as the Act requires compliance, which includes the following provisions:
a.    Court Application for Failure to Provide Notice or Non-Performance of Duty or Core Task [section 8];
b.    Qualified authorization of Personal Representative requires compliance with EAA [section 20]; and
c.    Liability of the Personal Representative for failure to comply[Sections 23 and 31].

and while the Personal Representative’s compliance with the will, applicable laws and rules is not “new”, the EAA has again to a large extent codified and set forth in plain language those obligations.

a.    Court Application for Failure to Provide Notice or Non-Performance of Duty or Core Task [section 8].

If a Personal Representative refuses or fails to provide notice or perform a duty or core task Section 8 of the EAA expressly permits a party to apply to Court for relief as follows:

“Failure to provide notice or the non‑performance of duty or core task
8          If, on application, the Court is satisfied that a personal representative has refused or failed to provide the notice required under Part 2 or to perform a duty or core task for which the personal representative is responsible, the Court may
(a)        order the personal representative to provide the notice or to perform the duty or core task;
(b)       impose conditions on the personal representative;
(c)        remove the personal representative;
(d)       revoke a grant;
(e)        make any other order that the Court considers appropriate.”

While the ability to make an application to Court respecting the conduct of a Personal Representative is not new, the EAA has codified in plain language the right to make an application and perhaps clarified and made access to the applicable laws easier for the general public.

b.    Qualified Authorization of Personal Representative requires compliance with EAA [section 20].

While the authorization and powers of a Personal Representative are explored in greater detail in another post in this series on our blog, it is important to note that the section 20 of the EAA which sets forth the authorization of the Personal Representative is qualified stating in part as follows:

“Personal representative’s authority
20(1) Subject to the will, if any, and this Act or any other enactment, a personal representative has the following authority in regard to the property included in the estate of the deceased person:”
[Emphasis Added]

The highlighted portion of section 20 clear is important, because in order for the Personal Representative to exercise the authority granted by section 20 the Personal Representative must comply with the will, if any, the EAA and any other enactment.

The Personal Representative’s authority has always founded in the will and applicable legislation, and the failure to strictly comply and abide by the will and applicable legislation results in the Personal Representative acting without authorization.

This is not new law, but the EAA codifies in plain language this obligation, and again perhaps makes clarifies it and makes it more accessible and easier to comply for the general public.

c.    Liability of the Personal Representative [Sections 23 and 31].

Section 23 of the EAA is important because it makes clear a Personal Representative in exercising authority or powers vested is liable to discharge all duties imposed by the will, applicable laws and the Court and can be compelled to discharge those duties as follows:

 "Duties and liabilities of personal representative
23   A personal representative is subject to all the liabilities and compellable to discharge all the duties in respect of the exercise of any authority or powers vested in the personal representative by this Act or any other enactment and any other law that applies, and in respect of any property received by the personal representative through the exercise of that authority or those powers, the liabilities and duties that are imposed by a will, if any, by law or by the Court."

Again, this is not new law, but the EAA codifies in plain language this obligation, and again perhaps makes clarifies it and makes it more accessible and easier to comply for the general public.

As set forth above, one of the core tasks of the Personal Representative in administering the estate is satisfy debts and obligations of the estate.

If you are an executor, executrix or Personal Representative carrying out your responsibilities under a will or Grant of Probate or Letters of Administration, or named as one under a will and/or considering applying to court for a Grant of Probate or Letters of Administration then you must be aware of and comply with this new Act.

Please contact us to see if we can be of assistance to you in navigating your rights and responsibilities as a beneficiary, personal representative or in your estate planning.

This is not legal advice and does not create a solicitor-client relationship, please see our terms of use for our website and blog.

Schedule
Core Tasks
(Section 7(2))

​This Schedule provides examples of activities that may be included in the core tasks referred to in section 7(1).
1     Identifying the estate assets and liabilities may include, but is not limited to,
(a)        arranging with a bank, trust company or other financial institution for a list of the contents of a safety deposit box,
(b)       determining the full nature and value of property and debts of the deceased person as on the date of death and compiling a list, including the value of all land and buildings, a summary of outstanding mortgages, leases and other encumbrances, and online accounts, and
(c)        applying for any pensions, annuities, death benefits, life insurance or other benefits payable to the estate.
2     Administering and managing the estate may include, but is not limited to,
(a)        creating and maintaining records,
(b)       regularly communicating with beneficiaries concerning the administration and management of the estate,
(c)        examining existing insurance policies, advising insurance companies of the death and placing additional insurance, if necessary,
(d)       protecting or securing the safety of the estate property,
(e)        providing for the protection and supervision of vacant land and buildings,
(f)        arranging for the proper management of the estate property, including continuing business operations, taking control of property and selling property,
(g)        retaining a lawyer to advise about the administration of the estate,
(h)       applying for a grant in accordance with this Act or applying to bring any matter or question before the Court if appropriate or necessary for the administration of the estate,
(i)        commencing or defending a claim on behalf of the estate,
(j)        preparing and providing financial statements, and
(k)       performing any other duties required by law.
3     Satisfying debts and obligations of the estate may include, but is not limited to,
(a)        determining the income tax or other tax liability of the deceased person and of the estate, filing the necessary returns, paying any tax owing and obtaining income tax or other tax certificates before distributing the estate property,
(b)       arranging for the payment of debts and expenses owed by the deceased person and the estate,
(c)        determining whether to advertise for claimants, checking all claims and making payments as funds become available, and
(d)       taking the steps necessary to finalize the amount payable if the legitimacy or amount of a debt is in issue.
4     Distributing and accounting for the administration of the estate may include, but is not limited to,
(a)        determining the names and addresses of those beneficially entitled to the estate property and notifying them of their interests,
(b)       informing any joint tenancy beneficiaries of the death of the deceased person,
(c)        informing any designated beneficiaries of their interests under life insurance or other property passing outside the will,
(d)       administering any continuing testamentary trusts or trusts for minors,
(e)        preparing the personal representative’s financial statements, a proposed compensation schedule and a proposed final distribution schedule, and
(f)        distributing the estate property in accordance with the will or intestate succession provisions.