What is a Grant of Administration?
Do you have a loved one who has recently passed away without a Will? If so, you may be wondering what your next steps should be. The legal work involved with administering an estate in the absence of a Will (also known as dying intestate) can be complicated and feel overwhelming during an already difficult time. But with proper legal guidance, you don’t have to worry. The first and most important step is applying for a Grant of Administration (or Letter of Administration) which is issued by the Alberta courts and which appoints a Personal Representative (also known as an Administrator) to administer the deceased’s estate. A Grant of Administration may also be needed if a Will is present but does not name an Administrator, or, if the person named is unable or unwilling to assume the role. If this sounds like you, we can help. At Litwiniuk & Company we understand that this can be a difficult time for family members, and we want to make the legal process as easy on you as possible.
Intestacy – dying without a will; when the deceased passes without a will, he or she is said to have died intestate.
Personal Representative – the person (also referred to as an executor, executrix, administrator, or judicial trustee), usually named in the Will, who is responsible for carrying out the instructions in the Will, and managing and distributing the deceased’s property and assets.
Grant of Administration – Intestacy
When a person passes away without a Will, everything gets put on hold including the distribution of inheritances. No one has the authority to handle the deceased’s estate until a Grant of Administration is issued by the Surrogate Court of Alberta. A properly written Will names a Personal Representative to oversee the administration the estate. If a Personal Representative has not been named, the decision to choose an Administrator falls to the courts. Up to three family members of the deceased can apply for a Grant of Administration. In Alberta, the priority of who gets the role of Administrator is decided in the following order:
- The spouse or adult interdependent partner (i.e. common-law relationship) of the deceased;
- If there is no surviving spouse or partner, or that person is unable or unwilling to act, the children of the deceased are next in line;
- If there are no children, or the children are unable or willing to act, priority falls to any grandchildren 18 years of age or older;
- Any other lineal (blood) descendants of the deceased who are of legal age;
- Parents of the deceased who are willing and able;
- Siblings of the deceased who are willing and able; and
- Other persons related to the deceased.
Spouses and common-law partners are always given preference, regardless of where they reside. For all other family members applying for Grant of Administration, priority is usually given to Alberta residents as this makes the most sense given the responsibilities of the Personal Representative. It’s important to keep in mind that an Administrator must have the time and availability to handle the deceased’s taxes, distribute the estate amongst beneficiaries, and so on. Depending on the size and complexity of the deceased’s estate, this process can take several months.
If there is equal priority between the three candidates, it is up to the family to decide if one or all should act as Administrator. The court also has the power to select a person of “lower” priority, such as a sibling of the deceased, if that person is a better candidate for the role. For example, the 19-year-old child of the deceased technically has “higher” priority but may not be the best choice. As well, the next of kin who holds highest priority may also nominate any person of their choosing, regardless of priority. An example of this would be if a person dies without a Will and leaves behind a husband, child, and sibling. Although the husband has first priority, if he does not want to take on the role (which is quite common) he can nominate another person to be the Administrator. That person can be anyone of his choosing and they are given priority over all other candidates.
What is the role of an Administrator?
In Alberta, the term “Personal Representative” refers to the person, usually named in a Will, who is responsible for administering the deceased’s estate. In the absence of a Will or in the case of Will Annexed, this individual is more commonly referred to as an “Administrator”. Once power of administration has been granted by the court, this person is responsible for managing and distributing the deceased’s property and assets amongst beneficiaries, as well as taking care of taxes and any additional paperwork that might be required. An experienced Wills lawyer can help the Administrator with this process to ensure everything is done correctly. Because many of these tasks are related to financial matters, taxes, and various related paperwork, the Administrator must be capable of handling these responsibilities.
According to the Surrogate Rules of Court, an Administrator:
- Needs to apply for a Grant of Administration in the absence of a Will or Will Annexed;
- Has no power over the deceased’s estate until the court grants them permission to act by issuing the Grant of Administration;
- Is usually the person with the highest priority on the list of people eligible to apply (unless the courts decide otherwise);
- Is responsible for managing the distribution of the deceased’s estate;
- Must distribute the estate in accordance with the rules set out by Alberta’s Wills and Succession Act;
- Has a legal and ethical duty to the estate and its beneficiaries; and
- Must execute all matters of the estate in accordance with the Estate Administration Act and the Trustee Act.
Grant of Administration – Will Annexed
In some cases, the deceased has not named a Personal Representative in their Will or the Personal Representative named in a Will is either unable or unwilling to assume the responsibility. When this happens, the court issues a court order known as a Grant of Administration with Will Annexed, that appoints an Administrator to execute the Will in accordance with the deceased’s wishes. If you have recently lost a family member and you are wondering what to do next, or you have questions about applying for a Grant of Administration, call or email us for a free consultation.
Estate Laws and Forms
Alberta has many laws that specifically apply to Wills & Estates, and many more that may apply depending on the circumstances. The main laws are:
- The Surrogate Rules of Court;
- The Estate Administration Act;
- The Wills and Succession Act; and
- The Trustee Act.
The Surrogate Court, also known as Probate Court, is a division of the Court of Queen’s Bench of Alberta that deals with Wills & Estates. There are specific rules that apply at Surrogate Court, and specific forms to use in that venue; an experienced probate or estate lawyer will be well-versed in the laws and forms.
The law in Alberta states that an Administrator or Personal Representative must begin the process of distributing the deceased’s estate as soon as it is practicable for them to do so. While it does take some time to prepare the application, beneficiaries are waiting on you to receive their inheritance, so it is important to start the process as soon as possible. If you delay, the beneficiaries of the estate may take you to court.
Steps For Applying for a Grant of Administration
- Get the application forms for Grant of Administration
In order to apply, you need specific forms called “Surrogate Forms” which can be found at www.qp.alberta.ca; search for “Surrogate Rules Package.”
2. Gather information
To complete the application forms, you will need fairly extensive information about the deceased, the estate, and beneficiaries. It’s a good idea to get started on this as soon as possible, as this step can be time consuming. You will need to collect:
- The original Will (not applicable if there is no Will)
- A comprehensive list of the deceased’s assets and debts and their value
- Banking information (i.e. location of bank, account number, interest rates for all bank accounts, loans, credit cards, investments, etc.)
- Legal land descriptions
- Detailed descriptions of the deceased’s valuable belongings (i.e. vehicles, art, keepsakes, collectables, etc.)
- The date of the deceased’s birth as well as where they were born.
- The date of the deceased’s death as well as where they passed away.
- Names, dates of birth, and addresses of all beneficiaries
This step usually requires some investigative work and it can take time to gather all this information.
3. Complete the Surrogate Forms
In Alberta, there are about 80 different Surrogate Forms. You may not need all of them, depending on your situation. There are 4 different classes of forms:
- NC – non-contentious matters
- C – contentious matters
- ACC – accounting reports
- NGA – notices to spouses, family members, attorneys, trustee, Public Trustee or guardian
A Wills lawyer can help you understand what forms you need and help you complete the paperwork. If you would like a lawyer to help you with part of the process, you can get a limited scope retainer. For example, you might have the lawyer prepare the application for Grant of Administration while you do everything else. Visit https://www.law-faqs.org/alberta-faqs/legal-services/retainer/ to learn more about retainers, or, call us today!
4. Publish a Notice to Claimants in the newspaper
A Notice to Claimants is an ad written in the local newspaper notifying anyone who might wish to make a claim against the estate, such as creditors or someone the deceased owed money to. As an Administrator, it is up to you whether or not you wish to publish a notice. It is generally recommended in order to protect yourself from any liability. Claimants have exactly one month to contact you about their claim; you should wait to file your application until the deadline has passed. If the estate is worth $100,000 or less, the notice only needs to be published once. If the estate is worth more, the notice must be posted a second time – at least five days apart. All notices must be published in the local newspaper.
5. Notify the appropriate people
As of 2015, Alberta’s Surrogate Rules now require all Administrators to notify spouses and beneficiaries that they are entitled to receive an inheritance from the estate. These notices must be prepared by the Personal Representative and sent by mail, accompanied by a cover letter and copy of the deceased’s Will. Following is a list of the people notices must be sent to:
- All beneficiaries
- Current and former spouses of the deceased
- Current and former adult interdependent partners (common-law)
- Guardians of dependent children, minor grandchildren or great-grandchildren
- The Public Trustee
All notices must be delivered before you file your application. You must take a photocopy of each notice and attach an Affidavit of Service, along with proof that the notice was mailed.
6. Review the application
It’s important to review the application thoroughly to ensure you haven’t missed anything. All the forms must be fully and correctly completed; it is very important that you provide all the information requested. Incomplete or incorrect forms will be returned to you by the courts, delaying the grant. If certain information does not apply to you, write “Not Applicable” or “N/A” instead of leaving that section blank.
7. File the application
Now that you have completed all the necessary forms, it’s time to apply to the court. The application for the Grant of Administration must be filed in the Surrogate Division of the Court of Queen’s Bench in Alberta. The Surrogate Forms should be filed at the courthouse closest to the deceased’s former residence. For more information and a list of Court of Queen’s Bench locations in Alberta can be found at https://albertacourts.ca/qb/about/locations-and-sittings.
In Alberta, an application for a grant is referred to as a ‘desk application’, which means that a judge will review your forms without you having to speak to the judge in a courtroom. However, if there is a contentious matter, then you will have to appear in front of a judge, and seek the guidance of an experience Alberta Wills lawyer.
8. Wait for the courts to get back to you
This next step may take several weeks, or sometimes months. When the court has reviewed your application and are ready, the clerk of the court will contact you to let you know what your court fees are. These fees must be paid before the court will issue you the Grant of Administration. The fees are dependent on the value of the deceased’s estate – the larger the estate, the higher the fee – up to a maximum of $525. Read on to learn more about the fees for Grant of Administration.
9. Carry out your duties as the Personal Representative or Administrator
You’ve received the Grant of Administration from the court and now you’re ready to begin the process of administering the deceased’s estate and managing their last affairs.
Surrogate Rules in Alberta
No one wants to go to court if they don’t have to. In Alberta, the Surrogate Rules make it possible to resolve most Wills & Estates matters outside of the courtroom. Alberta’s Surrogate Court is responsible for confirming if a Will is valid, the appointment of Personal Representatives, as well as disputes related to Wills & Estates. In most cases, family members of the deceased will never set foot inside Surrogate Court. They will, however, be required to submit the proper legal documents to the Surrogate Clerk’s office. A Wills & Estates lawyer will be able to help prepare this paperwork and reduce the likelihood of families ever needing to appear in court. At times there may be more complex issues related to an estate, such as a dispute, which may require a court appearance. An experienced Wills & Estates lawyer will make the process as easy for you as possible.
Alberta’s Surrogate Rules are divided into the following parts:
Part 1: Non-contentious Matters including but not limited to:
- Application for Grant of Administration/Probate/Will Annexed
- Notice required
- Personal Representatives
- Administration of the Estate
- Making/changing/revoking a Will
- Duties of the Clerk
Part 2: Contentious Matters including but not limited to:
- Proving validity of Wills
- Proof of death
- Claims on the deceased’s estate
Part 3: Accounting including but not limited to:
- Financial statements
- Acceptable documentation
Part 4: Revoked by the Court of Queen’s Bench in 2010.
Part 5: Transitional, Repeal, and Commencement including but not limited to:
- Compensation for legal and personal representation
- Court fees
What is the cost for Grant of Administration?
The Province of Alberta’s fees for Grant of Administration are the same as they would be for a Grant of Probate and those are relatively low; currently the maximum fee is $525. The more valuable the estate, the higher the government probate fees. There are also additional fees depending on the forms and applications necessary, ranging from $35 to $250. For a current fee schedule, visit https://www.alberta.ca/court-fees.aspx. Lawyers’ fees vary depending on the size and complexity of the estate, the local rates, and the experience of the lawyer. Wills and estate lawyers typically charge either a flat fee, or a percentage of the value of the estate, or a combination of both. If you need help with applying for a Grant of Administration or acting as a Personal Representative, or if you have questions about the process in Alberta, call or email us for a free consultation.
Grant of Administration vs. Grant of Probate
When someone passes away, the courts in Alberta typically require a Grant of Probate to certify the validity of the deceased’s Will. Once Probate is granted, the Personal Representative can administer the estate according to the wishes of the deceased. But what if there’s no Will? This is where a Grant of Administration comes in. In the absence of a Will, a Personal Representative must be named. Grant of Administration and Grant of Probate both go though Surrogate Court. You will only ever need one, not both. If you have questions about Probating a Will, or Grant of Administration, call or email us for a free consultation.
Helping You Move Forward
We know how overwhelming it can be to navigate the complex and confusing world of Wills & Estates law, especially while grieving the loss of a loved one. It’s okay not to know what to do, and it’s perfectly normal to feel overwhelmed. We’re here to take care of you. At Litwiniuk & Company, helping people is what we do. And our hearts go out to you during this difficult time. We’ll help you through the process, and take some weight off your shoulders. If you have questions about applying for a Grant of Administration, or anything else related to Wills & Estates, give us a call or email to book a free consultation.