Estates
The Executor is a person named in a Will who will administer the estate, receive and distribute assets, and make various decisions relating to liquidation of assets or other administration matters. One of the purposes for preparing a Will is to determine and name an appropriate Executor. In the event that an Executor is not so appointed, any interested person can apply to the Courts to be an Administrator for the estate of a deceased person. In the event that no such person applies, there is a government appointed official administrator who will make the necessary court applications. However, Administrators appointed by the Court are often not sensitive to the needs of the survivors of the deceased and a portion of the estate, normally 5%, will be paid out as administrator fees.
Administration of an estate is most commonly done in one of two methods, known as “Probate” or “Administration”.
Probate
The term “Probate” means Court approval and acceptance of a Will as being the official Last Will & Testament of the deceased.
The process of Probate is applicable where a valid Will is in existence and the value of the estate (excluding properties such as joint tenancies which do not pass by the Will) exceeds Ten Thousand Dollars ($10,000.00).
It is the obligation of the executor named in the Will to investigate what assets are available, to give notice to other involved parties of his intention to seek Probate, and to make the appropriate application to the Court. The executor named in the Will often retains the services of a lawyer to assist with the Court application and the lawyers of Porter Ramsay are experienced with these applications and often assist executors in this regard.
Administration of an Estate
Administration of an estate occurs pursuant to the Estate Administration Act where there is no Will or where a Will fails to validly appoint an executor. Any interested party over the age of majority can apply to be administrator of a Will. The procedure to be followed by the successful applicant is similar to that of an executor where a Will is Probated.
The Trustee Act allows an executor or administrator to charge up to 5% of the value of an estate for his fees.
Following Grant of Letters
Probate or Letters of Administration
Upon obtaining grant of Letters Probate or Letters of Administration from the Court, the Executor or Administrator must gather in the assets and distribute them according to the terms of the Will or Estate Administration Act. Care must be taken by the Executor or Administrator to ensure not only that the wishes of the deceased or requirements of the Estate Administration Act are fulfilled, but also that all statutory lien claimants are satisfied. Certain statutory lien claimants such as income taxes receive a preferred status by legislation and if assets are distributed to beneficiaries before all statutory lien claims are satisfied, the Executor or Administrator can become personally liable.
Porter Ramsay is pleased to provide information on various legal topics that are relevant to residents of the Okanagan. This information is written by lawyers at our firm.
Estate Lawyers: