Most people do not have experience in administering the estate of a deceased person. We can help administer simple or complex estates.
The most common role of lawyers in the administration of estates is to advise and assist the personal representative (also known as the executor, trustee or administrator) in carrying out their role from the outset of the file to the final distribution of the estate. We help them determine whether a grant of probate or administration is required, and if so, we collect the required information to draft and submit the application to court.
Personal representatives are fiduciaries, meaning that they are trustees for the beneficiaries of estates, and they are generally subject to strict liability for losses which means that the standard for their work is effectively perfection. If they fail to achieve that standard, they can be personally liable for estate debts, estate losses or other losses to the estate. The legal fees involved to assist a personal representative in completing their role without attracting liability are generally payable from the estate. Estate administration is not intuitive, even for sophisticated people, and there are lots of pitfalls. As such, we highly recommend that personal representatives obtain legal advice in order to avoid liability.
Clients frequently ask us: what is a grant of probate?
A grant of probate is a document signed by a justice of the superior court which certifies that a will is a valid will. Many third parties will require a grant of probate in order to deal with a named executor, because they otherwise cannot be sure that the will being proferred (and the authority being claimed by an executor) are legitimate. By obtaining a grant of probate, they can be sure before they give someone control over the assets of the estate that the person is legally entitled to it.
Common examples of third parties who require a grant of probate are the land titles office, banks and investment companies. As such, estates with any real estate or with significant holdings in banks or investments will normally require a grant of probate of the will before the executor can take control of those assets.
We can assist you in determining whether a grant of probate will be required, and if so, we can prepare and submit the application to court. This process can be very difficult to navigate for non-lawyers. Legal counsel can take a significant burden off an executor’s plate.
Where there is no will, the intestate succession rules in the Wills and Succession Act apply to determine both the distribution of the estate and who has priority to apply to be the administrator of the estate. It’s important to know that without a will, an administrator has no authority whatsoever prior to the issuance of the grant of administration, even if they have priority to apply.
We can advise those who are interested in an intestate estate as to the process to administer the estate as well as the entitlement of those who are involved, and also assist in the preparation of the application for a grant and advise the administrator throughout the process.
Sometimes, where there is a will, no grant is required and an estate is administered more informally. In that case, it’s more likely that the executor does not obtain the advice of a lawyer, but they do so at their own peril. On an informal administration, the executor is held to the same high standard as when a grant is required, and there are still formal notice requirements that they are likely to be unaware of.
Just because no grant is required doesn’t mean the involvement of a law firm is unnecessary. Executors still have strict liability, and can benefit from legal advice and assistance.