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Friday, March 5, 2010

When can an administrator start acting for an estate?

An administrator of an estate is similar to an exector in many ways, but there is one very important difference. An executor has the legal authority to act on behalf of an estate as soon as the person who appointed him or her dies. This is because the executor's authority is set out in the deceased's Will. An administrator, on the other hand, has not been named by the deceased. This means that an administrator can't act on behalf of an estate until he or she is appointed by the court, which could take a few weeks.

If a person dies without any Will at all, someone must apply to the court for a Grant of Administration. If the person dies leaving a Will, but the Will does not appoint an executor (for example, the named executor has died and there is no alternate named) there is a slightly different procedure. Assuming that the Will is otherwise valid, the person would apply for a Grant of Administration With Will Annexed. This means that the Will is going to be followed in every way other than replacing the executor.

If you intend to apply to the court to become the administrator of an estate for someone who has recently passed away, you can:

  • protect any of the assets that you can
  • if there are cheques for the deceased person, set up an account in the name of the estate and put the cheques in
  • make funeral arrangements
  • take the bill for the funeral to the deceased's bank and ask them to pay the bill out of the deceased's bank account

Some of the things you should not do before you are appointed are:

  • pay any bills (other than funeral as mentioned) using the deceased's money
  • tell people that you are in charge of the estate
  • place a Notice to Creditors and Claimants in the newspaper
  • sign any papers on behalf of the estate
  • make enquiries about life insurance policies, bank accounts, investments etc belonging to the deceased in which you state or imply that you have authority to gather the information or the assets
An administrator is entitled to be paid for his or her work just as an executor is.

If someone in your life has passed away without leaving a Will and you are the person who is going to apply to the court, you may feel some urgency to get on with the things that need to be done in the estate. Take the time to do things legally and correctly to protect the beneficiaries of the estate, and to protect yourself from future liability. The first thing to do is see a Wills and Estates lawyer to get the application to the court going. If you choose a lawyer who does not specialize in Wills and Estates, you can expect the process to take longer.

If you are appointed as an administrator but are completely overwhelmed by the responsibilities or the time pressures, keep in mind that you can walk into any Scotiabank branch and ask them to call the trust department to help you. You can hire Scotiatrust to be your agent. This means that you're still the administrator and can call the shots, but you will have someone to do all the legwork.

33 comments:

  1. 3children of the deceased applying for administration. 2 sisters want to be administrators ( together) but the brother that doesn’t get along with them (doesn’t want to do anything but supervise), he is not giving them the rights unless he is also a part of the 3 or he wants to hire a company to do the estate administration. If the 3 of us are administrators would we always have to get permission from all 3 whenever any transaction is done or can 2 override the other?
    Toronto

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    Replies
    1. This is a tough situation for the three kids. All decisions must be jointly made, and it appears that the brother is warning everyone up front that he doesn't plan to be co-operative. You might consider his idea of hiring a trust company, as at least you will a) have someone neutral and b) get some guidance on the best way to do various things.

      Lynne

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  2. 2 kids (32, 34) and 3 kids (10,12,18) disagree on who should be liquidator of the fathers estate. Is this simply a matter of numbers and the 3 kids can designate whomever they want?

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    Replies
    1. No, it's not a matter of numbers. In each province, the law sets out a hierarchy of who can apply to be executor, administrator or liquidator. Kids who are 10 and 12 wouldn't be considered in any case as they are minors, and it seems ridiculous to even ask a 10 year old who should take on this job. I am not familiar enough with Quebec legislation to recite who has priority, so the best idea is to ask a notary. You could also try looking it up for yourself at www.canlii.org.

      Lynne

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  3. Is it possible to change a name associated with an asset in an estate (i.e. a bank account) to the name of the person administering the estate? We would not want a deemed disposition. If it is possible to do this, could you provide some documentation that I could refer to? Thanks!

    ReplyDelete
    Replies
    1. All assets of an estate pass through the executor or administrator, so yes, the assets will most likely be transferred at some point into the administrator's name.

      This is a deemed disposition, because it is a change in title or ownership. With financial assets, the disposition happens even when you do not file any paperwork (that is why it's called "deemed").

      I don't know of a way to avoid having a disposition when an asset leaves a deceased person and goes to his or her estate or beneficiaries. If I did, I'd be a very rich person because everyone would want to know my secret.

      Lynne

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  4. My mom had a will and listed me as Executor and left everything she had to me. She lived with me for 8 years before being placed in a nursing home, her will went missing from my home, the day she left, I believe by someone in my family who was in my home that day. I have found a copy at her lawyer's. Would I have a good chance of executing my duties as an Exectutor with this copy? I was listed as the Informant on her Death Certificate and was Next of Kin for 30 years and can get witnesses who have seen the will in the past. I have 2 other siblings.

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    Replies
    1. Though normally the original will is needed for probate, it is definitely possible to use a copy for probate in certain circumstances. I think you have a better chance than most people of meeting those circumstances since your Mom lived with you for several years and you were obviously involved in her life.

      One of the reasons that the original will is normally needed for probate is that the law presumes that a will that cannot be found has been revoked by the testator. The basic idea of what you need to do now is establish for the probate court that the will of which you have a copy is in fact your Mom's last will, that she did not destroy the original, and that she didn't make a new one. The lawyer who made her will should be able to help you with that.

      Lynne

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  5. My grandfather left and outdated will, naming his deceased wife as executor and my mother as beneficiary.
    We have lawyer in Saskatchewan where they had a house but there has been little to no progress in my mothers attempts to become administrator. Essentially she feels she is stuck in a loop, being asked on one side for bank statements and being denied bank statements on the other. The lawyer seemed competent when we met him briefly but I am now wondering if there is a time frame for this to occur before its too late. My poor mum is running out of steam.

    Do you have any advice? I just figured this is normal but reading your helpful resource has me thinking otherwise! Thanks for the great resource!
    Danielle

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  6. Can I apply to be an administrator without a lawyer?

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    Replies
    1. Yes, if you're comfortable with doing that on your own. Please don't attempt it alone if there are legal issues or a blended family or complex assets. The reason people use a lawyer is not to fill in paperwork but to get legal advice on the rights of various parties, the proper way to transfer assets, filing tax returns, and staying out of legal trouble. If things are very, very simple, you may wish to go it alone by using a kit (see the "interesting links" section of this blog for links to the ones I know of) or by going to the Queen's Printer in your province to get a copy of the forms you'll need. The QP will sell you forms, but not instructions, help, or legal advice.

      Lynne

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  7. My dad passed away few months ago without a will and my brother took away all the father's ID and document, it seems to me that he might have secretly applied as the estate. Does the court approve him to become administrator without the need of notify anyone else in the family?

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  8. Hello, so my mother in law passed away in August and the only real assets that she had was her jeep with and outstanding loan. Her 2 children have both contacted TD auto finance to discuss all of the options and all they have said is that she didn't have life insurance on the jeep and they will not do anything else until there is a lawyer or the executor of the will, problem is there was no will and both children do not want to spend money they do not have to hire a lawyer to get this all sorted. If one of them or both even were to file to become the administrator would this solve the problem? And if not what would be the best option for them to resolve this?

    ReplyDelete
    Replies
    1. If the problem is that an executor is needed, then yes, having an administrator appointed would solve the problem. They can do everything an executor can do, AFTER they've been appointed. Since there is very little in the estate, perhaps they'd like to try to apply for the admin without using a lawyer. I know there are DIY kits available in some provinces (see the Interesting Links section of this blog).

      Lynne

      Delete
  9. If i was appointed administrator by my bank without court documents, am I able to make insurance inquiries regarding my late daughter

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    1. The bank cannot appoint you as administrator of an estate. Only the courts can do that. It appears to me that the banks are allowing you to deal with your daughter's bank assets, but they have no authority over any other kinds of assets. There is nothing the bank can do that will help you deal with an insurance company.

      Lynne

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  10. my son passed away 1 month go. he has no will, no assets except for some small RRSP from a union he used to work for, and never named a benifiary. any money there will be split between 3 children in trust(from 2 different mothers)he has taxes that need to be filed. what are my options without incurring more debt. or be responible for any debt he may owe?

    ReplyDelete
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    1. You should apply to the court to be appointed as administrator of his estate. That will give you the right to handle his RRSP and to give/get information with Canada Revenue Agency. You can try preparing the documents yourself if you feel up to it, or you can hire a lawyer to help you. The cost of the documents can be paid from his RRSP money. You don't have to pay it yourself. The court fee is based on the size of the estate so that should be small.

      Rest assured that you will not become responsible for his debts. They are his alone unless he had a co-owner or co-signor on something. If you become administrator, your responsibility is to pay the debts as far as the estate will go, and if there is anything left, to distribute that to his beneficiaries.

      If you are in NL, I can help you with the paperwork very inexpensively. If you call around to law firms, you might consider asking if they have an articling student who could do the work, as the students have a much lower rate than experienced lawyers.

      Lynne

      Delete
  11. ok here is 1 for you. My father passed away 3 months ago. he leaves 3 children and 1 wife of 23 yrs. he had no will but we found a cohab and prenup which gives the widow no rights to anything. we sought out a lawyer to help us and we did what he said from trying to make a settlement with her in which she told us to f $@# off and 1 of her sons threatened my brother. the 3 of us were in agreement to make me the administrator. the lawyer got it alldone up but will not file for application because the widow got a lawyer and said she doesn't want me to be the administrator. 2 things now come up. how can she have any say when she signed off on everything. and why does my lawyer say that we may have to get another lawyer to be an interm admin. please help. to me its pretty black and white (she has no legal say in it) soo why is this not moving forward

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    1. Obviously I haven't seen the cohabitation or the pre-nuptial agreement, so I'll assume you're correct in that the widow does not receive any of the assets of the estate that belonged to your father when they married.

      Keep in mind that a standard agreement says that whatever the parties brought into the marriage is theirs to take if the other one dies. It does not say that whatever they built together for 23 years all goes to his kids. I seriously doubt that the agreement allows for that, since it would be grossly unfair. Also keep in mind that standard language in a cohabitation agreement says that a spouse will "Make no claim" against an estate, but this does not preclude her from having rights that arise automatically without her having to make a claim. For example, if there is property in joint names or she is named as a beneficiary on a policy or plan, those belong to her without her making a claim.

      I should also point out that you are confusing two separate issues here. One is whether she gets any of the assets. Two is whether she has the right to act as administrator of the estate.

      Provincial legislation in all provinces gives the first right to apply for administration to a spouse. Therefore she IS the person with the right to control the estate, unless of course the cohabitation agreement specifically says otherwise. They usually don't say that, but you can check on it.

      You may think things are "pretty black and white" but that is an overly simplistic view of things. Not receiving assets is not the same thing as "having no legal say in it".

      If you need an interim administrator, it doesn't have to be a lawyer, but that is a standard choice. It has to be someone neutral between the parties. This usually happens only when there is a fight over who is going to be the administrator that can't be resolved. An alternative to getting a lawyer to do it is to get a trust company or the provincial public trustee (a government agency).

      Lynne

      Delete
  12. I am a grandchild 34 for my deceased grandmother 89. She has 4 children all in their 60s. Do i have any right as an imapartial administrator to file?

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    Replies
    1. When you say "to file" I assume you mean to file an application with the court to be appointed as the administrator of your grandmother's estate.

      Assuming your grandmother died without a valid will, and assuming that the assets and other facts of her estate require that someone be appointed (a lot of assumptions, I know, but your note is very brief)...

      The law in each province and territory sets out who has a right to apply. In every case, the children have a greater right than the grandchildren to apply. This means you could not apply to be the administrator unless all of the children agreed in writing.

      If for some reason one person would neither apply themselves nor agree that someone else could apply, then you'd need to ask the court to dispense with that person's agreement.

      Lynne

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  13. I live in Nova Scotia I have recieved an Estate Cheque for Jane Doe in care of John doe ,I am John doe and i was married to Jane doe,there was no will when Jane died ...what can I do with this cheque. when jane died i looked after everything and acted as administrator but was never appointed as such

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  14. Hello Lynn, I am so confused, My brother passed away (suicide)in January 2017 had no will, no assets nothing or so I thought, He owes 100,000 in credit card debt. I have been working with the credit card insurance companies as he paid premiums monthly however to date the pay-out of CC was about 9,000, I know a long way to go. Out of frustration I dumped all his debt papers in the closet and said I am out. He has two young children 9 and 11 estranged from him since 2009 living with their mother who had taken them out of province, Now his company has advised me that there is a death benefit of approximately 250,000 (by telephone) no written information. I want to pay off the debt and anything left over give to the children. I am confused by the paper-work and my brother and I are the only ones that can apply for an administrator (executor) my brother has been estranged from our deceased brother for 10 years however we are still close and I know he would fill out the Renunciation form. I am confused by the forms as they are asking regarding assets and debts. I have all the debts but just a phone call about the 250,000 Where do I begin?? Help please Anne Marie Farr

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  15. My father appointed the lawyer who drew up his will to be executor. Now the lawyer is charging me full layer fee's(billed by the hour) for the actions took while finalizing his estate. Living in Canada in the Atlantic Provinces. Is it the norm for the family to be charged full billable lawyer fee's as they were acting as executor?

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  16. My grandmother passed away and according to the lawyer her will was invalid as it was not properly witnessed. My Aunt is the administrator of my grandmother's estate. With there being no will, the estate was left to her three daughters and the children of her 4th daughter. Can the administrator sell the property without notifying all the beneficiaries of the estate? The three children of the deceased daughter were not notified they were beneficiaries until after the house was sold. Can this be done without the input of all those involved?

    ReplyDelete
    Replies
    1. Yes, the administrator has that power and that right. Sometimes executors or administrators get input from others but there is no legal requirement to do so.

      Lynne

      Delete
  17. Hello - I hope you can give me a bit of help. My sister passed away in Alberta, did not have a will and was divorced. She has two young children, both living in Alberta with their respective fathers. Our family is on the East Coast and we were told by a law office in Alberta that her next of kin could apply for a Grant of Administration through the courts in Alberta for the purpose of settling her estate (RRSPs, vehicle sale, etc.) Do you know if a lawyer on the East Coast can handle this situation or do we have to go through a lawyer in Alberta and be present in Alberta to have it done? Thanks for any input you may have, it is appreciated.

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    Replies
    1. It will be a lot easier if you get a lawyer in AB who knows the local rules, forms, processes, fees, etc.

      Lynne

      Delete
  18. Hello, I am seeking some advice. My brother passed away and had very little assets (Less than $5000). He leaves behind 1 adult child from his first marriage and an 18 yr old child from his second marriage. He has been estranged from his second wife for over 10 yrs but they are still legally married. When we attempted to make funeral arrangements, we were told that because he is still legally married, only the wife could control disposition of the remains. The wife was contacted and she insisted that she would take care of making the arrangements, even though the family asked her to relinquish the responsiblity. Here is where things get sticky... she is now insisting on access to his apartment, bank cards and cellular phone. Does she automatically have the rights to his personal property even though they have been estranged for over 10 years? Are we supposed to just hand everything over to her and hope she does the right thing? We have reason to believe that she is involved in criminal activities and we have no reason at all to believe that she will act in good faith and do anything other than take whatever she can and run.

    ReplyDelete
    Replies
    1. Unfortunately, your brother was an example of why people need wills even though they don't have a lot of assets.

      If he had left a will, he would have appointed an executor. That executor would have the right to make funeral arrangements, no matter who was his next of kin. As it is, yes, she is the closest next of kin and has the right to make the arrangements.

      I would not want to give her access to the apartment and other items either, but legally this is a bit sticky. Right now nobody has the right to give away or keep anything of your brother's because there is no executor.

      Is anyone planning to apply to the court to be the administrator?

      If the wife is making the funeral arrangements, she maybe wants access to assets so that she can pay for it. That is a reasonable thing to ask.

      The other issue here is that when a person passes away without a will, the law of intestacy says who gets the estate. A married spouse is first in line and since the assets are less than $5,000, she is likely entitled to all of it. She would be entitled to "take whatever she can and run" if it's hers.

      There are variations in the law depending on which province your brother lived in. But remember that the law recognizes legal relationships and generally does not deal with moral obligations. The fact is your brother was married and neither got divorced nor made a will. So you're pretty much stuck with that unless you're willing to spend much more than $5,000 to oppose the wife's claim.

      Lynne

      Delete
  19. Hi my ex husband passed away in Calgary AB, November 2018 with no will and has 3 adult children.He was only temporarily in Calgary AB and was a born British Columbia resident. He passed away at his girlfriend's place who is on Welfare and claiming single.His girlfriend was trying to get her grandchildren out of foster care in Calgary AB and my ex-husband was helping her financially and signed a lease on the duplex she was renting. Would his estate be liable to pay the rent until the lease is up? They just got back together about 6 months before my ex husband passed away, so I believe she would not be considered his common law spouse, as AB law states a couple must cohabitate for 2 to 3 consecutive years to be common law. Am I correct? His girlfriend is claiming she is his legal spouse and arranged his body to be transported back to BC for the funeral and cremation and has taken his ashes back to Calgary with her and won't let his kids have them and she won't give his kids their father's personal documents or any of his personal belongings.The girlfriend swore on a bible at the funeral home she was the legal spouse and got the death certificate and got money out of my exhusbands account. My ex husband had his brand new truck at her place and is driving the truck with my exhusbands insurance on it. All his other assets are in BC, he has a bank account in BC and Calgary AB. We believe the eldest child can apply to be administrator in the BC courts, are we correct? My ex husband has a fishing vessel with a fishing license and a 5th Wheel in BC and not sure what else yet.Does the girlfriend have any right to apply to be administrator of his estate? How can the son make her give him all the documents and ID of his Fathers and his ashes and his persoal belongings, like his cell, clothes, tools, etc? Can we make an application to the Calgary court? Do we have to go to Calgary to do that? My son can't afford a lawyer or afford to go to Calgary for court. Can you advise on what is the best things to do in this case please and thank you.

    ReplyDelete


  20. AnonymousJanuary 24, 2019 at 12:21 AM
    Hi my ex husband passed away in Calgary AB, November 2018 with no will and has 3 adult children.He was only temporarily in Calgary AB and was a born British Columbia resident. He passed away at his girlfriend's place who is on Welfare and claiming single.His girlfriend was trying to get her grandchildren out of foster care in Calgary AB and my ex-husband was helping her financially and signed a lease on the duplex she was renting. Would his estate be liable to pay the rent until the lease is up? They just got back together about 6 months before my ex husband passed away, so I believe she would not be considered his common law spouse, as AB law states a couple must cohabitate for 2 to 3 consecutive years to be common law. Am I correct? His girlfriend is claiming she is his legal spouse and arranged his body to be transported back to BC for the funeral and cremation and has taken his ashes back to Calgary with her and won't let his kids have them and she won't give his kids their father's personal documents or any of his personal belongings.The girlfriend swore on a bible at the funeral home she was the legal spouse and got the death certificate and got money out of my exhusbands account. My ex husband had his brand new truck at her place and is driving the truck with my exhusbands insurance on it. All his other assets are in BC, he has a bank account in BC and Calgary AB. We believe the eldest child can apply to be administrator in the BC courts, are we correct? My ex husband has a fishing vessel with a fishing license and a 5th Wheel in BC and not sure what else yet.Does the girlfriend have any right to apply to be administrator of his estate? How can the son make her give him all the documents and ID of his Fathers and his ashes and his persoal belongings, like his cell, clothes, tools, etc? Can we make an application to the Calgary court? Do we have to go to Calgary to do that? My son can't afford a lawyer or afford to go to Calgary for court. Can you advise on what is the best things to do in this case please and thank you.

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