If you’ve been appointed as an Estate Executor, or Personal Representative, for the first time, it can be daunting to know where to start. The deceased may have left behind a house, bank accounts, RRSPs, investments, bonds, stocks, personal belongings, and other possessions that you’re now responsible for.
As the Estate’s Executor, you’re also responsible for communicating regularly with beneficiaries and the deceased’s family members. If you’re a beneficiary of the deceased’s Estate, you may wonder what the Executor’s role actually entails and what their obligations to you are.
The Importance of Formal Legal Advice
Whether you’re an Executor, beneficiary, or are otherwise interested in an Estate, it’s important that you contact a Wills & Estates lawyer to determine exactly what the Executor’s responsibilities are in your particular circumstances.
While this article provides a brief overview of an Executor’s responsibilities to an Alberta Estate, it’s not always clear how an Executor should fulfill those duties. An experienced Wills & Estates lawyer will have a deep understanding of the law in the area and will be able to advise you based on the specifics of your particular situation.
Formal legal advice can also help the Executor manage their liability and potentially prevent drawn-out Estate litigation. If you’re a beneficiary, consulting with a Wills & Estates lawyer can help you ensure that you obtain your full share of the Estate in a timely manner.
What are the Responsibilities of an Executor (Personal Representative) in Alberta?
While most of us use the term Executor in common conversation, the correct legal term for an Executor in Alberta is “Personal Representative”. There are two main pieces of legislation that delineate the responsibilities of a Personal Representative of an Alberta Estate: The Estate Administration Act, and the Surrogate Rules. The Surrogate Rules are actually a Regulation of the Judicature Act, but for simplicity’s sake, we refer to them as the Surrogate Rules in this article.
What does the Alberta Estate Administration Act Say?
Part I of the Estate Administration Act is entitled “The Role of a Personal Representative”. Here are the key responsibilities, among others, that the Act places on a Personal Representative:
A Personal Representative in Alberta must:
- Perform his/her duties honestly and in good faith;
- Perform his/her role in accordance with the intentions of the deceased’s Will, if the deceased died leaving a valid Will;
- Act with the care, diligence, and skill that a person of “ordinary prudence” (i.e., not someone who is overly cautious nor someone who takes unnecessary risks) would exercise in similar circumstances;
- Distribute the Estate as soon as practicable;
- Identify the Estate assets and liabilities of the deceased;
- Administer and manage the Estate;
- Satisfy the debts and obligations of the Estate (typically from Estate funds); and
- Distribute and account for the administration of the Estate.
Is the Personal Representative a Professional?
Subject to the Will, if the Personal Representative is part of a profession, occupation, or business that makes it such that they ought to possess a greater degree of skill than the average person, they will be held to a higher standard. This rule would likely apply to lawyers, accountants, and other such professionals.
There are other Acts that determine who has authority to dispose of the deceased’s remains—the Personal Representative has a duty to follow that legislation when it comes to funeral arrangements and disposal of remains.
Duty to Give Notice as follows:
- When the Executor obtains a Grant of Probate or Grant of Administration, the Executor must file and serve all proper notices required by that process—a competent Wills & Estates lawyer can guide you through the relevant notices;
- When the Executor acts without a Grant, which happens in some circumstances, they must give notice to the following people, among others, where applicable:
- The beneficiaries of the deceased person;
- The family members of the deceased person;
- The deceased person’s Attorney, Trustee, Guardian, or the Public Trustee’s Office, where applicable;
- The spouse of the deceased; and
- The Adult Interdependent Partner of the deceased (typically a common-law spouse, but this can also refer to another person with whom the deceased lived in a relationship of interdependence).
What do the Alberta Surrogate Rules Say?
While the Estate Administration Act covers the technical legal duties of the Executor, the Surrogate Rules include a table of “Personal Representative Duties” that outlines the practical “nuts-and-bolts” responsibilities of the Personal Representative.
According to the Surrogate Rules in Alberta, the Personal Representative’s duties include:
- Making arrangements for the disposition of the deceased’s body;
- Making funeral or similar arrangements;
- Determining the names and addresses of the Estate’s beneficiaries;
- Notifying the Estate’s beneficiaries of their respective interests in the Estate;
- Determining the full nature and value of the property and debts of the Deceased as of the date of death;
- Making a list of all assets, the values of the same, and any encumbrances or debts, including mortgages, associated with said assets;
- Reviewing existing insurance policies;
- Notifying insurance providers of the deceased’s death;
- Obtaining additional insurance on the deceased’s property as necessary;
- Protecting or securing the safety of any Estate property;
- Providing for the protection and supervision of vacant land and buildings;
- Arranging for the proper management of the Estate property, including continuing business operations, taking control of property, and selling property;
- Retaining a lawyer to advise on the administration of the Estate, apply for a Grant, or bring another court application as needed;
- Applying for any pensions, death benefits, annuities, life insurance, or other benefits payable to the Estate;
- Advising any joint tenant beneficiaries of the death of the deceased;
- Advising any designated beneficiaries of their interests under life insurance or other property passing outside the Will;
- Arranging for the payment of debts and expenses owed by the deceased and the Estate;
- Determining whether to advertise for claimants, checking all claims and making payments as funds become available;
- Taking the steps necessary to finalize the amount payable if the legitimacy or amount of a debt is in issue;
- Determining the income tax liability or other tax liability of the deceased and of the Estate, filing the necessary returns, paying any tax owing and obtaining income tax or other tax clearance certificates before distributing the Estate property;
- Instructing a lawyer in any litigation;
- Complying with the requirement for filing an acknowledgement of trustee(s) before distributing any property to a trustee;
- Preparing the Personal Representative’s financial statements, a proposed compensation schedule, and a proposed final distribution schedule; and
- Distributing the Estate property in accordance with the Will or intestate succession provisions.
How Can an Estates Lawyer Help?
If you’re an Executor, the experienced Wills & Estates lawyers at West Legal can help you determine what your responsibilities to the Estate are, and guide you through the most streamlined, timely, and cost-effective methods of fulfilling those obligations.
If you’re a beneficiary, the Wills & Estates team at West Legal can advise you on what the Executor’s responsibilities are, and on how you can hold the Executor accountable if they’re not meeting their obligations to the Estate.