Estates - Applying for Letters Probate or Administration

Executor - Executrix - Administrator

When a person passes away, it is necessary to organize and distribute their estate. The first task for a lawyer is to determine who is responsible to handle the legal affairs of the estate. If the deceased had a will naming a person to do this, they are called an "executor" (male) or "executrix" (female). It is possible to name more than one person or to appoint a trust company to hold this position. If the deceased had no will, then this person is appointed by the court and is called an "administrator" (male) or "administratrix" (female). In Saskatchewan, if no person has been appointed as the executor in a will, the person with the first right to apply to be an administrator is generally the closest surviving relative of the deceased, such as a spouse. The order for priority is set out in The Intestate Succession Act. If someone else is to carry out this duty instead, the people with equal standing or priority need to sign a consent form agreeing to this. For the balance of this article, I will use the words "executor" and "administrator" even though of course there is also a feminine version of each word.

Bonding of Administrators

If a person has been appointed to be an executor through a will, the law presumes the deceased trusted this person to handle his or her affairs so the executor does not need to post any security. However, if an adminstrator is appointed, the law does not make this presumption. The administrator may need to post a bond to protect the beneficiaries and creditors if the administrator defaults in his or her duties. A bond can be purchased through an insurance agency from a surety company specializing in bonding. There is an annual fee that must be paid. It is fairly costly. It needs to be cancelled by a court order. Once issued, you need to keep paying annual premiums until the court releases the bonding company. Individuals can give a bond instead, in double the value of the estate assets. However, the individuals need to show they own sufficient property to cover the bond and that it is not exempt from seizure under provincial legislation. The beneficiaries and creditors can waive this requirement if they unanimously agree in writing but that is usually difficult or not practical to accomplish. This is yet another reason why someone should have a will and name an alternate executor in case the first cannot act.

Is Probate a Legal Requirement?

Sometimes, people do not want to probate an estate in order to save costs. There is no specific law forcing them to do so but practical circumstances may give them no choice but to probate the estate. For example, if the deceased owned land in his or her name only ... (there is no joint tenant), then the estate must be probated (if there is a will) or someone must apply for letters of administration (if there is no will or if the named executor is not alive or able to carry out the work). Sometimes there are investments in the name of the person who passed away with no beneficiary or joint owner named. In those cases, and depending on the value of the investment, the financial institution may refuse to cash it in and hand over the proceeds unless an application for probate is made.

Please contact me if I can be of help in making an application for probate or administration.