Resources 4 - EXECUTOR'S/ADMINISTRATOR'S INFORMATION SHEET

An Executor is an individual named in a Will to represent the deceased. An Executor "steps into the shoes" of the deceased at the time of the deceased's death. Where there is no Will (intestacy), an application is made to the court to have an individual appointed as Administrator of the deceased's estate. An Administrator's authority is similar to an Executor's but only comes into being at the time the court appointment is made. An Executor or Administrator is sometimes referred to as the deceased's "personal representative".

GENERAL DUTIES

If there is a Will, it is the first duty of the Executor to ascertain the terms of the Will and note any special duties he is required to undertake or otherwise carry on. Where there is no Will, this duty does not arise and an "Administrator" must follow the directions contained in the Estate Administration Act.

The personal representative then must:

(a) Ascertain the whereabouts and value of all the deceased's assets. This may involve searching for cash, securities, jewellery, and any other valuables and arranging for safekeeping of them. The Executor/ Administrator must prepare a detailed inventory of the assets.

(b) Check the insurance of the deceased's assets for coverage, including expiry date, and notify the insurance company or agent of the deceased's death. Particular attention should be paid to the house insurance policies which often contain a clause rendering the policy ineffective if the house is left vacant for over a certain period of time. The Executor / Administrator is responsible to "preserve and protect" the assets.

(c) Arrange for interim management of the deceased's business if any.

(d) Arrange for redirection of mail (this is usually done by means of a solicitor's letter).

(e) Check mortgages and agreements for sale and arrange for any payments accruing due.

(f) Check leases and tenancies, arrange for payment of rent and give notice if necessary.

(g) Arrange to have application made to the court for the issue of a grant of either Letters Probate or Letters of Administration.

(h) Complete and file the required forms.

(i) Advertise for creditors.

(j) Complete and file income tax returns.

(k) Pay funeral, legal and testamentary expenses and income taxes, if any, as well as pay all outstanding debts and meet all uncompleted obligations of the deceased.

(l) Claim all debts due to the deceased and collect all the assets.

(m) Keep detailed accounts of all assets and liabilities; revenues and expenses.

(n) Invest assets not properly invested prior to distribution of the estate.

(o) Distribute the estate to those entitled according to the Will or the law of intestacy.

A person who acts as a personal representative for a deceased person is entitled to receive compensation for the care, trouble, and responsibility taken or incurred in acting as personal representative. This amount is limited by law to a maximum of 5% of the gross aggregate value of the estate. This limit is applied whether a professional trustee (for example a trust company) or a member of the family or a friend of the deceased acts in that capacity. In addition to the compensation the personal representative is entitled to be reimbursed by the estate for his out-of-pocket expenses.

INTESTACY

Where there is no Will, the beneficiaries of a deceased's estate are determined by the Estate Administration Act. That Act provides that where the deceased dies leaving a spouse and no children the entire estate goes to the spouse. If there is both a spouse and children, the first $65,000.00 goes to the spouse. Of the remainder, 1/3 goes to the spouse and the balance is distributed equally among the children. If there is only one child, 1/2 of the balance goes to the spouse and the other 1/2 to the child. More remote relationships are also provided for in the absence of a spouse and children.

SOLICITOR'S DUTIES

The solicitor for the estate is responsible for advising the Executor on the terms of the Will and the law applying to administration. He ensures that the pre-grant matters are properly attended to , prepares the application for the Grant of Letters Probate or Letters of Administration, transmits the assets to the beneficiaries and where required assists in the passing of the Executor's/Administrator's Accounts.

The complexity of probating the estate depends largely upon the location and nature of the assets involved in the estate. In addition, the solicitor is responsible for ensuring that all the beneficiaries are properly notified. The solicitor should ensure that the beneficiaries release the Executor/Administrator from any claims they may have against him when the estate is distributed.

The amount charged by a solicitor depends to a great extent upon the work involved in preparing the probate. The solicitor should record the time spent on the estate and the bill may be adjusted depending upon the complexity and difficulty of the estate administered. The solicitor is also entitled to be reimbursed by the estate for any out-of-pocket expenses in doing the work.

This Information Sheet is not intended to be an exhaustive description of what is involved in an estate. It is prepared with the idea of being a background Information Sheet for individuals who are not familiar with what is involved in probating an estate.

 

J.H. Rocke Robertson
Direct Line: +1 (604) 267-2814
E-mail: robertson@aydinco.com