10 steps to take when the testator diesWhile being a personal representative does not have to be difficult, because there are many details, you need to be organized. For immediate help, look to the schedule at the end of the Estate Administration Act, it contains a helpful list of the activities that a personal representative may need to take on. It is recommended that you start a filing system to keep track of all the matters that come up and the decisions that you make. Here are the ten most common steps that a personal representative may take when the testator dies.
1. Locate the will and any codicils and read them as soon as possible.Many people keep their original will (and codicils) in a safety deposit box or with their lawyer. To look in the safety deposit box, make an appointment at the bank. Take the safety deposit box key, the death certificate (or funeral director’s statement of death), and your own identification. Tell the manager of the financial institution that you are the personal representative and are looking for the original will. If the will is there and names you as personal representative, the bank should let you take the will.Note: If you cannot find the safety deposit box key, it can be drilled open for a charge.Be sure to read the will carefully, as it may have instructions about the person’s wishes for organ donation (also look at the back of the testator’s driver’s licence), cremation and/or burial, funeral or memorial service. It may not, however, and you may have to search for another document containing these instructions. Alternatively, you may need to consult with family members and friends who knew the testator’s wishes on these issues.
2. Register the death, arrange for cremation and/or burial, and obtain the death certificateThe personal representative, spouse, next of kin, or a person who has full knowledge of the facts surrounding the deceased is responsible for completing a Registration of Death form. This form is usually completed at the funeral home when funeral arrangements are being made. The funeral home will provide a Funeral Director’s Certificate of Death and will send the original documents to the provincial office of vital statistics. This form becomes a permanent legal record of the death event. It is very important that it be completed fully and accurately. This information is used to produce death certificates. For information on the death registration process, and to obtain a death certificate, contact a registry agent for vital statistics. A list of such agents is available at www.servicealberta.ca/1641.cfm. Legally, the personal representative is responsible for arranging cremation and/or burial. Often people leave instructions about what they want — but not always in their will. Be sure to look for any records pertaining to this issue (such as a prepurchased burial plot). If there is any doubt about what the person wanted, the personal representative has the legal authority to decide.
3. Determine the testator’s assets and debts and make a listDetermine assets (what the testator owned) and liabilities (what the testator owes) of the testator by going through the testator’s important documents and writing for information to financial institutions, insurance companies, brokers, employers, government pension offices, and RRSP and/or RRIF trustees. Specific tasks can include (if applicable):
It is recommended you turn this information into a formal written list. If you obtain probate, you will require a formal list known as the “Statement of Assets and Liabilities.” Even if you do not obtain probate, such a list is useful. Specifically, make a list of:
- Considering the immediate financial needs of the surviving spouse, adult interdependent partner, and dependents.
- Determining eligibility and applying for Canada Pension Plan Death Benefits, Survivor’s Benefits, and Orphan’s Benefits.
- Contacting current and previous employers to determine any survivor pension benefits or insurance proceeds.
- Reviewing tax returns from past years and completing and filing any previous outstanding tax (T1) returns.
- Acquiring all title documents for property, mortgages, share certificates, bonds, debentures, and guaranteed investment certificates.
- Obtaining estimates (appraisals) of all real estate, securities, automobiles, and any personal property.
- Reviewing insurance policies to determine adequacy of coverage and making changes, if necessary.
- Advertising for possible creditors to make sure all legitimate debts are paid.
- Obtaining evidence of any family law entitlements of the surviving spouse or adult interdependent partner (and any previous spouses or adult interdependent partners) and dependents.
- Compiling a complete list of assets and liabilities, listing them by their class and value. Include all certificate numbers, registration particulars, maturity dates, interest rates, and payment frequency.
- Discuss probate requirements, beneficiary notice, and administrative concerns with an estate lawyer.
- Real property (for example, the testator’s home and other land holdings). You may wish to subdivide the list by class and value. To determine the market value of the person’s home, refer to the Property Assessment Notice. You may also wish to consult a real estate agent.
- Personal property (for example, cash, jewellery, furniture, pension and death benefits). Again, you may wish to subdivide by class and value. To determine market value for probate purposes, you may need to contact an appraiser or dealer.
- All debts (and any dates by which they must be paid). If you are not sure of all the debts, you may wish to advertise for creditors who have claims against the estate. This is all the more necessary if the person owned a business. Advertising for creditors is, in fact, always advisable in order to protect yourself. A lawyer can help you with this task.
Do not list assets that are owned in joint tenancy or that are to go to a specifically named beneficiary outside of the will (for example, RRSPs, pension plans, and life insurance policies). These do not form part of the estate.
- People to whom you will be distributing the estate (for example, beneficiaries’ names, addresses, relationship to deceased, and gifts they are to receive).
4. Protect the assets.As personal representative, it is your responsibility to protect the testator’s assets. For example, you may want to make sure they are insured and safe. You may wish to place valuable papers, cash, or jewellery in a safety deposit box. If the person owned a business, you will need to arrange for its ongoing and proper management. Common steps to protect the assets include:
- Gain access to and list contents of the testator’s safety deposit box(es).
- Arrange for safe storage of valuable items.
- Gain access to the testator’s motor vehicle and ensure it is stored in a safe place.
- If the testator has minor children, ensure the care of those minors.
- Gain access to the testator’s residence to take care of pets, make sure appliances are off, take in mail, mow the lawn, collect the newspapers, etc.
- If the testator was in a rental unit, make arrangements with the landlord for the removal of the testator’s property (or terminate lease or arrange sublease, depending on the circumstances).
- If you have not already done so, notify any insurers, government departments, banks, and other financial institutions of the death of the testator.
- Cancel the testator’s driver’s license, utilities, subscriptions, memberships, etc. Request refunds, where possible.
- If applicable, cancel GST quarterly credits, Child Tax Benefit, Universal Child Care Benefits, Old Age Security, and/or Canada Pension Plan payments.
- Cancel health insurance coverage.
- Obtain information on outstanding credit card balances and cancel cards.
- Contact Canada Post to reroute the testator’s mail.
- Register change of address with all relevant parties.
- Open an estate bank account and arrange for collection of future income. Deposit all cheques and pay all bills from the estate account. The account may also be used to provide for the testator’s immediate family’s financial needs if necessary.
5. Determine the location of, and notify, all beneficiariesYou must notify all the beneficiaries named in the will and anyone else who may have a legal claim on the estate such as a common-law spouse, children, or a separated spouse. You do not need to have a gathering to “read the will,” as in the movies. If you intend to apply for probate, your notice to the beneficiaries will include a copy of your notice of application for a grant of probate. You must carefully follow the rules about the notice as contained in section 11 of the Estate Administration Act. The form that a personal representative should use can be found in the Surrogate Rules, which are available through the Alberta Queen’s Printer at http://www.qp.alberta.ca. Even if there is no requirement to go to probate, a personal representative may want to consider the benefits of providing information about the will, with a view to building trust and reducing potential conflict.
6. Determine if you will need to apply for probate and, if so, start the application processDetermine whether the will needs to be probated. Probate is the procedure that confirms that the will can be acted on and that you have the authority to act as personal representative. You do not have to obtain probate if all the deceased’s valuable assets were owned jointly with others (such as the family home being owned jointly with the spouse), the estate is not very big (you can usually avoid probate if the estate is worth less than $25,000) or if, for example, the only asset is a bank account which the bank is willing to transfer without probate (this will depend on the bank’s internal rules; some banks will allow very large accounts to pass to a spouse without probating the will). If, on the other hand, the testator owned real estate (not in joint tenancy), the law requires probate: the Land Titles Office will not transfer land without probate. Check with any institutions that hold the person’s assets to find out what they require. Sometimes financial institutions will not release the person’s money without confirmation of probate. Sometimes it depends on how confident the staff are that you have authority to act. If employees know you and your relationship to the deceased, they may be satisfied just to see the death certificate and the will. If there is any dispute as to the authenticity of the will or the testator’s capacity at the time of signing (that is, that she or he may have been mentally incapable or unduly influenced), it is often best to obtain probate. Once the court decides these issues, you can move safely forward with your duties as personal representative. In most cases, you do not actually have to go to court to get probate — it is called a desk application. You will still need to fill out specific forms and then take the forms, along with the original will, to the Court of Queen’s Bench. You can complete this process on you own or get help from any estate lawyer. Court clerks may assist you with terminology and the forms, but they will not provide any legal advice. You will need to pay a fee when you file the documents. You can obtain the forms by ordering from the Alberta Queen’s Printer at http://www.qp.alberta.ca. There is a fee for the Surrogate Forms. The Queen’s Printer package contains all forms for Probate, Administration, and Dependent Adult applications, together with completed samples of each. You may also purchase the forms at any stationery store, but examples are not included in the packages. Be sure to fill out the forms accurately and completely. Answer every question (including “not applicable” or “nil”). Blank spaces suggest that information is missing. This is one of the main reasons that forms are rejected. You will need to sign some of the documents in front of a lawyer, a Notary Public, or a “commissioner for taking affidavits.” All court registries have such a commissioner. Some community groups do as well. When you sign, it means you are swearing that the information you are providing in the document is true. After the court determines that your forms are in order and the fees are paid, you will get a Grant of Probate. This is a legal document that allows you to deal with the estate. If your application is rejected, the staff will tell you why. Correct the problem and reapply. You only have to pay the filing fees once. If the judge has one or more specific questions to ask you, you may be required to go to court.
7. Remain aware of possible claims against the estate by dependents, spouses, and othersUnder Alberta law, certain individuals can apply to a court for financial relief if they are not satisfied that they have been properly taken care of under a will. For example, the Wills and Succession Act allows any child or spouse of the deceased to apply to the court to vary or change the terms of the will. This provision has a sixmonth deadline, starting from the granting of probate. It is advisable, therefore, that you wait at least six months before distributing the assets. To avoid this possibility, you may wish to obtain releases from each potential claimant. Remember that you are responsible if you distribute the assets to the wrong people and you could be sued.
8. Collect, deal with, and sell the assetsOnce you are ready, you must begin to collect and sell (liquidate) the assets. The following are some of the things you may have to do. Remember these do not apply to assets that are not part of the estate. If the testator had minor or dependent children, or was otherwise the guardian of another person, contact a lawyer and the Office of the Public Guardian for information on how to proceed.
- Close all bank, credit union, and trust company accounts held by the testator. Transfer all the money into the estate bank account.
- Send in claim forms for death benefits or pension benefits. This may involve contacting an employer, a union, Canada Pension Plan, Old Age Security, Veterans Affairs, and others. You should also check with the testator’s employer, clubs, etc. about benefits available there.
- Collect any money coming to the person or the estate including salary, unpaid benefits, and insurance.
- If any of the testator’s loans were insured, complete the appropriate insurance forms.
- Apply to transfer assets such as real estate property, a car, bonds, and other items with a registered title. Assets of the estate are transferred first to the personal representative and then to the beneficiary. These steps are often done at the same time. The Land Titles Office has the forms for transferring real estate. Licensing and registry agents handle transfers of motor vehicles.
- Keep records of all income received and any expenses paid. Keep copies of all letters and forms you send.
- Obtain contents of the safety deposit boxes and arrange to have them closed.
- For joint accounts or land (with rights of survivorship), request the accounts or land to be transferred to the surviving party.
- Invest any cash surplus according to the terms of the will (or the Trustee Act, as circumstances dictate).
- Organize the sale of securities if converting to cash. Otherwise arrange for the re-registration and transfer of securities.
- Arrange for transfer or rollover of RRSP and/or RRIF proceeds.
9. Pay the debts and expenses and file the income tax returns.Pay all the outstanding debts and expenses, such as:
If the estate does not have enough money to pay all outstanding debts, it is very important to get advice from a lawyer so that you do not become personally liable for the debts. You must also file a final income tax return (Terminal T1 Tax Return) for the person. You will need to ensure that there are no outstanding returns from previous years. Not all taxpayers are up-to-date with their tax returns. If the person had assets or income in another country, you may need to file a foreign income tax return as well. Review the Canada Revenue Agency booklet “T4011 – Preparing Returns for Deceased Persons.” This guide is available for download from their website at www.cra-arc.gc.ca.
- reasonable funeral expenses;
- probate fees and legal costs;
- municipal and income taxes; and,
- all other claims as of the date of deathNote: Terminal period returns have to be filed by April 30th of the year following the year of death, or six months from the date of death, whichever is later.After the income tax is reported, assessed, and paid, apply for a Clearance Certificate (issued by the Canada Revenue Agency after all of the testator’s taxes have been paid). For your own protection, you should have this Certificate before you begin to distribute the estate. If the estate property is distributed without a Clearance Certificate, you may be personally liable for the estate’s unpaid taxes, plus interest. For more information or to get forms, contact the Canada Revenue Agency by calling 1-800-959-8281 or visiting http://www.cra-arc.gc.ca.Note: The estate is a taxpayer under the law and a T3 income tax return must be filed for every year it exists.
10. Distribute to the beneficiariesIt is recommended that you not distribute the estate until at least six months after probate is granted. You do this to make sure that no one is going to challenge the will. If all those who have a claim on the estate sign a form saying they will not contest the will, you can go ahead sooner. It is recommended that you not distribute any part of the estate before all of the debts and taxes are paid. The following are your general tasks. There are extra duties if the will includes a trust, such as with beneficiaries who are minors.
- Distribute gifts of cash (legacies) and gifts of personal belongings (bequests) to people or organizations named in the will. Sometimes the person attaches a separate list with the will that says who should receive particular items. While this is not legally binding — if the item is not mentioned in the will — it makes the personal representative’s task easier.
- Examine the will for details regarding the distribution scheme of assets. If necessary, discuss distribution of assets in kind with beneficiaries.
- Review any restrictions or time periods imposed on the distribution of estate assets.
- Prepare cheques.
- If distribution in kind is required, provide beneficiaries with securities and obtain receipts for them.
- Provide beneficiaries with personal effects and obtain receipts from them.
- Provide beneficiaries with legacies (cash amounts) and obtain receipts from them.
- Determine if the will provides for trusts. If so, arrange for these trusts and organize an ongoing review of investments. Also, arrange a review to ensure an ongoing compliance with the rest of the terms of the trust (including tax issues). Contact the Office of the Public Trustee for advice and direction.
- Prepare a final statement of assets, debts, income, expenses, and distribution. This is for the beneficiaries to approve and is called “passing of accounts.”
- Ready accounts for approval or “passing” by beneficiaries and prepare releases.
- When accounting has been completed, write to beneficiaries to request their approval.
- Calculate personal representative’s compensation.
- Confirm that all releases have been received once beneficiaries have given account approval.
- If any cash and belongings remain after you have distributed the specific gifts and compensated the personal representative (if applicable), divide the remainder (the “residue”) as instructed by the will. If the will does not have a residue clause, you must distribute the remainder as if there were no will. This is set out in the Intestate Succession Act.
- If accounts need to be audited by the court (as required in conjunction with probate or if a beneficiary challenges your actions), prepare an application and all necessary notices and book a court date.
- After confirming that all written cheques have cleared, organize the closure of the estate bank account, making the request in writing.
- Write a detailed report regarding all aspects of the estate administration and send it to the beneficiaries.You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. November 2015.