A Grant of Probate and/or Grant of Administration is obtained from the Surrogate Court. A Grant of Probate is granted by the Surrogate Court when an individual dies with a Will in place. It validates the Will and the authority of the Personal Representative (this is the new term for “executor”) in such capacity to administer the Estate.
What is a Grant of Administration?
A Grant of Administration is a legal document granted by the Surrogate Court when an individual dies without a Will. It validates the authority of the individual applying for it to act as the Personal Representative of the Estate of the deceased individual and gives them the authority to administer the Estate.
What exactly does “administering” an Estate mean?
The duties of a Personal Representative, whether it be under a Grant of Administration or a Grant of Probate are governed by the Estate Administration Act, S.A. 2014, c. E-12.5. What are those duties? Very generally, you, as Personal Representative, are tasked with compiling all of the assets of the Estate (those items listed under Form NC7 – Inventory of Property and Debts) and once you have paid out all of the debts of the Estate (also noted in Form NC7), distributing what remains of the Estate to the beneficiaries under the Will as noted in Form NC6, Schedule 4 – Beneficiaries, one of documents forming part of your application to the Surrogate Court for the Grant of Probate. When an individual dies without a Will, you would be distributing what remains of the Estate to those individuals with entitlement under the Wills and Succession Act, S.A. 2010, W-12.2. In this instance, the beneficiaries will also have been listed in Form NC6, Schedule 4 – Beneficiaries, which document will have formed part of the documents you would have filed with the Surrogate Court to obtain the Grant of Administration. Once you obtain the Grant, you have one year to pay all of the debts of the Estate and distribute what is remaining of the Estate to the rightful beneficiaries.
More specifically, once you have obtained the Grant (whether it be a Grant of Probate or Grant of Administration), you are tasked with the duties set out in my blog of April 1, 2018. Some of these will apply to your situation and some will not. One of the most important things you should do, as a Personal Representative, is to keep a very accurate accounting of the Estate – a listing of all of the assets and their respective value, a listing of all debts (liabilities) and a listing of all of the expenses you have incurred in carrying out your duties as Personal Representative.
The expenses you incur in your capacity as Personal Representative are reimbursable to you from the Estate. Some examples include accountant fees for filing the deceased’s final tax return and the Estate’s tax return, paralegal or lawyer fees for obtaining the Grant, realtor fees, etc. I cannot stress enough how important it is to keep a record. You are responsible, not only for keeping the beneficiaries informed of your progress in administering the Estate but also for what you have paid out in debt and expenses. This is where a Personal Representative can run into difficulties and a potential lawsuit.
A beneficiary has a legal right to request from a Personal Representative an accounting of their administration of the Estate. If a beneficiary is not satisfied with that accounting, the beneficiary may apply to the Court to have a Personal Representative formally “pass his/her accounts”, meaning that the Personal Representative must file with the Court a detailed listing of all transactions made by the Personal Representative in administering the Estate. Keeping detailed records of what you have done with the Estate will protect you from something like this happening, and in the event, it does happen, it will act as evidence in support of your actions as a Personal Representative.
Distributing the assets once all debts have been paid, can be done in one action or overtime, depending on the circumstances of the Estate. It is vital to obtain a Release from each beneficiary on the final distribution. The Release essentially states that the beneficiary, upon receipt of the funds, or final allocation of funds, as the case may be, approves of the accounting provided to them by the Personal Representative and from any further entitlement to the Estate, while releasing the Personal Representative from any liability arising from his/her actions in carrying out his/her duties as Personal Representative. A formal Release can be found in the Surrogate Court Rules of the Alberta Rules of Court.
