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
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.
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?
ReplyDeleteToronto
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.
DeleteLynne
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?
ReplyDeleteNo, 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.
DeleteLynne
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!
ReplyDeleteAll 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.
DeleteThis 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
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.
ReplyDeleteThough 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.
DeleteOne 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
My grandfather left and outdated will, naming his deceased wife as executor and my mother as beneficiary.
ReplyDeleteWe 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