CETA-1 (3rd Ed) - Chap 04 - Initial Stages

Chapter 4
Initial Stages of an Estate Administration

Learning Objectives ................................................................................................................ 4-5
4.1 Initial Steps .................................................................................................................4-8
4.1.1 Locate the Will ..............................................................................................................4-8
4.1.1.1 Common Law Only: Locating the Will .........................................................4-8
4.1.1.2 Quebec Only: Locating the Will ..................................................................4-8
4.1.1.3 Will Registries ............................................................................................4-9
4.1.2 Funeral Arrangements ..................................................................................................4-9
4.1.2.1 Organ Donation ........................................................................................4-10
4.1.2.2 Authority to Deal with the Remains ...........................................................4-10
4.1.2.3 Deceased’s Wishes ..................................................................................4-11
4.1.2.4 The Costs of the Funeral and Disposition of Remains ..............................4-11
4.1.2.5 Bereavement Airfare ................................................................................4-12
4.1.2.6 The Obituary Announcement ..................................................................... 4-12
4.1.2.7 Veterans’ Allowance ................................................................................... 4-12
4.1.3 Communicate with Co-executor and Beneficiaries ......................................................4-12
4.1.3.1 Decision-making with Multiple Executors ..................................................4-13
4.2 Overview of the Steps in an Administration ...........................................................4-13
4.2.1 Milestones and Timelines ...........................................................................................4-13
4.2.2 Immediate Financial Needs ........................................................................................4-15
4.2.3 Interpretation and Issue Identification .........................................................................4-16
4.2.4 Identify and Value Assets ...........................................................................................4-16
4.2.5 Safeguard Assets and Identify Liabilities ....................................................................4-16
4.2.5.1 Assets 4-16
4.2.5.2 Debts and Liabilities .................................................................................4-17
4.2.6 Identify and Locate Beneficiaries 17
4.2.7 Apply for Grant of Probate or Administration/Confirm Authority to Act........................ 4-18
4.2.7.1 Common Law Only: Court Grants.............................................................4-18
4.2.7.2 Quebec Only: Notarial Wills and Wills Requiring Probate .........................4-18
4.2.8 Collect Assets, Pay Debts, and Distribute...................................................................4-18
4.2.9 Account to Beneficiaries .............................................................................................4-19
4.2.9.1 Common Law Only: Accounting Requirements ........................................4-19
4.2.9.2 Quebec Only: The Inventory .....................................................................4-19
4.2.10 Distribute and Wind Up Administration .......................................................................4-19
4.2.11 The “Executor Year” ...................................................................................................4-20
4.2.11.1 Common Law Only: The “Executor’s Year”...............................................4-20
4.2.11.2 Common Law Only: The Executor’s Year for Tax Purposes .....................4-20
4.2.11.3 Quebec Only: When Beneficiaries Are Entitled to Payment ......................4-20
4.3 Order and Contents of a Will Including Common Clauses ....................................4-20
4.3.1 Identification of Testator and Testamentary Intent ......................................................4-21
4.3.1.1 Quebec Only: Domicile and Matrimonial Status and Regime ....................4-21
4.3.1.2 Funeral Arrangements..............................................................................4-21
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4.3.2 Revocation ................................................................................................................ 4-21
4.3.3 Definitions ................................................................................................................. 4-21
4.3.4 Beneficiary Designations ........................................................................................... 4-22
4.3.4.1 Common Law Only: Beneficiary Designations in a Will .............................4-22
4.3.4.2 Quebec Only: Limits on Beneficiary Designations in a Will .......................4-22
4.3.5 Appointment of Executor(s) and Trustees and Alternates ...........................................4-23
4.3.6 Transferring Property to the Executors ..................................................................... 4- 23
4.3.6.1 Common Law Only: Vesting Property in the Executors.............................4-23
4.3.6.2 Quebec Only: Authority of the Liquidator (seisin) ......................................4-23
4.3.7 Expenses and Sale of Assets – Disposition of the Estate ...........................................4-24
4.3.7.1 Payment of Funeral Expenses, Debts, Taxes, and Other Testamentary
Expenses ................................................................................................ 4-24
4.3.7.2 Common Law Only: Conversion and Retention of Assets ........................ 4-24
4.3.7.3 Quebec Only: Realizing Assets ............................................................... 4-25
4.3.7.4 Specific Gifts (Legacies) .......................................................................... 4-25
4.3.7.5 General Disposition of Personal and Household Effects .......................... 4-25
4.3.7.6 Trusts for Specific Assets or Purposes .................................................... 4-26
4.3.7.7 Residue Clause ....................................................................................... 4-26
4.3.7.8 Quebec Only: Residue Clauses – Two Types of Legacies....................... 4-26
4.3.7.9 Assets Received Before Death .................................................................4-27
4.3.7.10 Survivorship Clause .................................................................................4-27
4.3.8 Payments to Minors (Under the Age of Majority).........................................................4-28
4.3.9 Administrative Provisions ...........................................................................................4-28
4.3.10 Signature and Witness Clause....................................................................................4-30
4.3.10.1 Common Law Only: Testimonium Clause .................................................4-30
4.3.10.2 Quebec Only: Declaration Clause ............................................................4-30
4.4 Appointment of Executor (Liquidator in Quebec) ..................................................4-30
4.4.1 Common Law Only: Acceptance of Role of Executor Under a Will..............................4-30
4.4.2 Quebec Only: Appointment of a Liquidator ........................................................... 4-30
4.4.2.1 Acceptance of Appointment ................................................................ 4-31
4.4.2.2 Who May Act as a Liquidator? ............................................................ 4-31
4.4.2.3 Where There Is More Than One Liquidator......................................... 4-32
4.4.2.4 When Security Is Required ................................................................. 4-32
4.4.3 Deciding Whether or Not to Accept an Appointment............................................. 4-32
4.4.4 Acting Before Acceptance ..........................................................................................4-33
4.4.4.1 Common Law Only: Intermeddling (Executor de son Tort) .......................4-33
4.4.4.2 Quebec Only: Acting Before Acceptance..................................................4-33
4.4.5 Renunciation ..............................................................................................................4-34
4.4.5.1 Common Law Only: Steps to Renounce ...................................................4-34
4.4.5.2 Quebec Only: Resignation of the Appointment .........................................4-34
4.5 Grant of Probate or Administration .........................................................................4-34
4.5.1 Quebec Only: Probate Procedure ...............................................................................4-34
4.5.1.1 The Probate Procedure ............................................................................4-34
4.5.1.2 Small Estates ...........................................................................................4-35
4.5.1.3 Application for Probate to a Quebec Notary..............................................4-35
4.5.2 Common Law Only: Reasons for Obtaining a Grant ...................................................4-36
4.5.3 A Word on Terminology ..............................................................................................4-36
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4.5.4 Role of the Court ........................................................................................................4-36
4.5.4.1 Proving a Will in Common Form ...............................................................4-37
4.5.4.2 Proving a Will in Solemn Form .................................................................4-37
4.5.4.3 When There is No Executor .....................................................................4-37
4.5.5 Reasons to Obtain a Grant of Probate ........................................................................4-38
4.5.5.1 To Deal with Interests in Land ..................................................................4-38
4.5.5.2 To Satisfy Third Party Requirements ........................................................4-38
4.5.5.3 To Protect Executor from Potential Liability ..............................................4-38
4.5.5.4 Ensure Certain Claims Expire ..................................................................4-39
4.5.5.5 To Conduct or Defend Litigation on Behalf of the Estate
or the Deceased .......................................................................................4-39
4.5.5.6 To Resolve Disputes Over the Validity of a Will ........................................4-39
4.5.5.7 Corporate Trustees ..................................................................................4-39
4.5.6 When a Grant May Not be Required...........................................................................4-39
4.5.6.1 Small Estates ...........................................................................................4-39
4.5.6.2 Multiple Wills ............................................................................................4-40
4.5.6.3 First Nations Estates Under the Indian Act ...............................................4-40
4.5.7 Types of Grants ..........................................................................................................4-40
4.5.7.1 Grant of Probate (or Letters Probate) .......................................................4-40
4.5.7.2 Grant of Administration (or Letters of Administration) ...............................4-40
4.5.7.3 Grant of Administration with Will Annexed ................................................4-41
4.5.7.4 Grant of Administration de Bonis non Administratis ..................................4-41
4.5.7.5 Grant of Administration de Bonis non Administratis with Will Annexed .... 4-41
4.5.7.6 Grant of Administration Pendente Lite ..................................................... 4-41
4.5.7.7 Ancillary Grant of Probate ....................................................................... 4-42
4.5.7.8 Resealing a Grant of Probate .................................................................. 4-42
4.5.7.9 Dealing with Assets in Another Jurisdiction where There Is No Will ..........4-43
4.5.8 Requirements to Apply for a Grant of Probate in Common Form ................................4-43
4.5.8.1 Notice Requirements ............................................................................... 4-44
4.5.8.2 Applications for a Grant of Administration ................................................ 4-44
4.5.8.3 Security for the Administration ................................................................. 4-45
4.5.8.4 The “Estate Summary” ............................................................................ 4-45
4.5.8.5 Probate Fees and Taxes ......................................................................... 4-46
4.5.8.6 Ontario Only: Estate Information Return and Probate Tax ....................... 4-46
4.6 Role of Estate Legal Professional ...........................................................................4-47
4.6.1 Services Provided by Legal Professionals ..................................................................4-47
4.6.2 Overseeing the Work of Legal Professionals and other Agents ..................................4-48
4.6.3 Fees Paid to Legal Professionals for Services ............................................................4-48
4.6.3.1 Common Law Only: Fees for Legal Services ............................................4-48
4.6.3.2 Quebec Only: Fees for Legal Services .....................................................4-48
4.7 Assets in Another Jurisdiction ................................................................................4-48
4.7.1 Personal Property and Real Property .........................................................................4-48
4.7.1.1 Common Law Only: When to Reseal or Obtain Ancillary Grant ................4-48
4.7.1.2 Quebec Only: Recognition of Liquidator Outside Quebec .........................4-49
4.8 Other Estate Matters to be Addressed ................................................................... 4-49
4.9 Privacy ..................................................................................................................... 4-49
4.10 AntI-money Laundering Legislation ....................................................................... 4-50
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Figure 4.1: Timeline for an Estate Administration .................................................................. 4-14
Figure 4.2: Fixed Rate Probate Fees by Jurisdiction ............................................................. 4-52
Figure 4.3: Sliding Scale Probate Fees and Taxes by Jurisdiction ........................................ 4-53
Figure 4.4: Alberta Only: Alberta Rules on the Role of the Personal Representative ............. 4-54
4-4
Chapter 4
Learning Objectives
There are many steps in an estate administration. It begins with making funeral
arrangements and addressing other immediate concerns. The executor must then
identify assets, liabilities, and beneficiaries, apply for a grant of probate if required,
settle all claims and liabilities, including final taxes, and distribute all legacies and
residue to the beneficiaries. These responsibilities were introduced and discussed
briefly in Chapter 2 Trustees, Personal Representatives, and Substitute Decision-
makers. Chapter 2 also introduced students to the law governing trustee duties. Trustee
duties generally apply to all personal representatives as well.
This Chapter provides an overview of the steps in an estate administration. It includes a
review of typical will clauses and the requirements for the appointment of an executor or
administrator (liquidator in Quebec)1 to be confirmed.
Common law students are introduced to the types of grants that can be obtained from
the court confirming an executor or administrator’s authority. Quebec students are
introduced to the situations where a court order is required to confirm a liquidator’s
authority.
The Chapter also reviews the role of the legal professional hired by the executor. Future
chapters deal with the executor’s responsibilities and administration activities in more
detail.
At the end of this Chapter, students will be able to:
• Identify and discuss the steps in an estate administration
• Identify and explain the purpose of will clauses
• Summarize the rules governing funerals and disposition of the body
• Summarize the requirements for an executor to accept or renounce an
appointment
1
As noted at the beginning of this course, the term “executor” will generally be used to refer to:
a) Common law jurisdictions: executors under a will and administrators (e.g. where there is no will or the
executor is not available)
b) Quebec: liquidators (e.g. when there is a will and there is not a will).
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• Discuss the role and responsibilities of the legal professional retained by the
executor
• Identify issues that may need to be addressed when an estate administration has
connections to both Quebec and a common law province, or to a jurisdiction
outside Canada
• Recognize when privacy and anti-money laundering rules apply to an estate
administration
• Demonstrate learning by applying rules and concepts to a given scenario
Common Law Only:
• Define and discuss the consequences of intermeddling
• Identify and discuss the reasons for obtaining a grant of probate or administration
• Identify the different types of grants that may be needed to administer an estate
• Identify the documents required to apply for a grant of administration
• Calculate fees payable to the court when applying for a grant of administration
Quebec Only:
• Identify when probate is required from the court
• Identify the requirements for the probate procedure
• Identify the documents needed to obtain proof of authority as liquidator
See also the commentary below Reminder.
REMINDER: Terminology varies significantly between provinces, and even more

so with Quebec. For ease of reading, as terminology is defined, one word or phrase
is selected for purposes of the materials in this course. Jurisdiction-specific
terminology is only used if required. See the Generic Terms Cheat Sheet for the full
list of generic terminology.
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Quebec Only: Administration of the Property of Others and Terminology
The specific rules governing estate liquidation are found at articles 776 to 835 CCQ.
Supplementary rules pertaining to the administration of the property of others (at articles
1299 to 1370 CCQ) also apply to the liquidator’s administration, except where otherwise
indicated in the law or the will. Students are encouraged to read these articles to
become familiar with the rules and the terminology. They will be referred to throughout
this course.
Students should also note the following terms used in this course:
1. “Succession” is not defined in the CCQ. It is a term used to refer to all of the
property to be transmitted to the heirs. The term is also used to refer to all of the
heirs collectively. Succession (whether testate or intestate) also refers to its
transmission to the heirs and the liquidation and partition of assets. The
succession is either an intestacy (it is transmitted by operation of the law), or
testamentary in nature (it devolves by testamentary disposition, including gifts
mortis causa).
The succession opens at the time of death, at the last domicile of the deceased
(art. 613 CCQ).
2.“Heirs”, “successors”, and “legatees” throughout CETA the text refers to
beneficiaries. “Heirs”, “successors”, and “legatees – particular or universal” are
different types of beneficiaries. These different types of beneficiaries are reviewed
in more detail later in the course (see Chapter 7 Estate Beneficiaries).
For the purpose of this course, the term “beneficiary” is used to refer generally to
heirs, successors, and legatees (e.g. those who are entitled to receive assets from
an estate, whether specific or more general and who have accepted the gift). The
term “beneficiaries” also includes those entitled to the revenues or capital of a
trust. The terms “heirs”, “successors”, and “legatees” are used when the context
requires a distinction and when the text is intended for Quebec students only.
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4.1 INITIAL STEPS

The first steps in any administration are to determine if there is a will, identify funeral wishes,
and initiate communications with the family and beneficiaries. Where there is no will, or the
executor is not available to take on the role, it will be necessary to identify someone who is
willing and able to take on the role and initiate steps to have the person formally appointed so he
or she can act.
Alberta: Part 1 of the Estate Administration Act2 has introduced a series of rules governing the
general duties of the personal representative. They set out the general duties (section 5), the
governing rules for disposition of human remains (section 6), the core tasks (section 7), and the
consequences for failure to perform a duty or core task. See Figure 4.4 Alberta Rules on the Role
of the Personal Representative for the full text.
4.1.1 Locate the Will
4.1.1.1 Common Law Only: Locating the Will

Wills are kept in a variety of places. While some testators may keep the original among
their personal papers or in safekeeping at home, original wills may be kept in a safety
deposit box or with the lawyer who prepared it. If a corporate trustee has been appointed
executor, the original will is usually kept in the company’s will vault so that it is readily
available.
When the original will is in safekeeping, a copy may be found among the testator’s
personal papers. Or, there may be a letter or wallet card indicating where the will is
located.
If it is necessary to search the deceased’s safety deposit box, the financial institution may
require a death certificate or other proof of death. A member of the financial institution
may also need to be present when the box is opened. See Chapter 5 Estate Assets, for
more information about accessing and listing the contents of a safety deposit box.
British Columbia: The Wills, Estates and Succession Act3 sets out the rules for
accessing a safety deposit box.
4.1.1.2 Quebec Only: Locating the Will

The location of a person’s will in Quebec depends on the type of will.
• An original notarial will remains in the records of the executing notary (see
4.1.1.3 Will Registries). The notary will issue certified copies to the liquidator.
• If the will is prepared by a lawyer, the original may be entrusted to the lawyer for
safekeeping, or given to the testator who may keep it in a safety deposit box or in
a special location at home among personal papers.
2
S.A. 2014, c. E-12.5.
3
S.B.C. 2009, c. 13, s. 183.
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• Where the will is signed before witnesses or is a holograph will, the original may
have been kept by the testator in a safety deposit box or at home.
4.1.1.3 Will Registries

Only two provinces have will registry systems. If an individual once lived in either
British Columbia or Quebec, or died owning property in either jurisdiction, a search
should be done to determine if a will has been registered in the province. This is
particularly important if the person appears to have died intestate (without a will).
British Columbia: When a testator makes or revokes a will or codicil, a notice may be
filed with the Department of Vital Statistics. The notice indicates the date of the will and
where it is located. There is a fee for filing the notice. If the will’s location changes, a
new notice should be filed. When a personal representative applies for a grant of probate
or administration from the court, a wills notice search must be conducted and the results
filed with the application. Since a testator is not required to file a wills notice, a search of
the will registry that fails to locate a will is not conclusive evidence that there is no will.
However, it is evidence that can assist the court when there is a question about a prior
will.
Quebec: A liquidator must conduct a search for a will made by the deceased, pursuant to
article 803 CCQ. There are two registers for wills in Quebec.
• An original notarial will is kept by the notary and must be registered with the
Registre des dispositions testamentaires et des mandats of the Chambre des
notaires du Quebec. The notary will issue certified copies of the will to the
liquidator.
• If a will is prepared with the assistance of a lawyer, it may be kept by the lawyer,
or the testator. If the will is kept by the lawyer, it must be registered in the
Registers of wills and mandates of the Barreau du Quebec.4
If the will search is negative, the liquidator should also conduct a search on the
“RDPRM”5 to determine if a marriage or civil union contract exists that contains a gift
mortis causa (arts. 1819 and 1839-1841 CCQ). Gifts mortis causa by marriage or civil
union contract may be made to a spouse or their respective and/or common children.6
4.1.2 Funeral Arrangements

One reason to quickly locate a will is to determine whether or not it contains instructions about
the funeral or disposition of the body. Some wills may also include organ donation instructions.
4
See the Règlement sur les registres des dispositions testamentaires et des mandats donnés en prévision de
l'inaptitude, RLRQ, c. B-1, r. 18.
5
“RDPRM” in English, the Register of Personal and Movable Real Rights, see art. 442 CCQ.
6
For a discussion of gifts “morta causa”, see Chapter 3 at 3.7.4.3 Quebec Only: Gifts Mortis Causa.
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Where these matters have been pre-arranged, information may also be found in the deceased’s
personal papers, safe box, or safety deposit box.
4.1.2.1 Organ Donation

Organ donation laws are provincial. Generally, the law allows a person to consent to
organ donation before death and may provide for certain people to consent after death.
The details of these rules are outside the scope of this course.7
4.1.2.2 Authority to Deal with the Remains

Common Law Jurisdictions: The legal responsibility for the funeral and disposition of
the deceased’s remains rests with the executor. The executor’s common law duties
relating to the possession, custody, and disposal of a deceased person’s remains have
been summarized as follows: 8
• to dispose of the body in a decent and dignified manner;
• to dispose of the body in a manner befitting the deceased’s station in life; and
• to provide particulars of the disposal of the deceased’s remains to the
deceased’s next of kin.
When a person dies intestate the next of kin usually attend to the funeral. If an
administrator is appointed, the administrator has the responsibility for disposal of the
body.9
British Columbia: Legislation sets out the priority for who has the right to control the
disposition of the remains beginning with the executor named in the will. If there is no
executor, it is the spouse, then an adult child. See the legislation for the remainder of the
list and the methods for resolving disputes, such as a dispute among adult children all of
equal rank.10
Alberta: If there is a dispute about who has the right to control the disposition of the
remains, subject to a court order, regulations set out the priority that begins with the
executor. If there is no executor, it falls to the spouse or interdependent partner if that
person was living with the deceased at the time of death. Next is an adult child. Where
there is no agreement among adult children, the oldest is given priority. See the
regulation for the remainder of the list and further details.11
7
In Quebec, the organ donation register is through the Chambre notaires du Quebec and only medical professionals
have access. For more information, see the government website at
http://www4.gouv.qc.ca/EN/Portail/Citoyens/Evenements/deces/Pages/renseigner-registre-don-organes.aspx
8
Kimberly Whaley, “Disputes Over What Remains” April 24, 2012 at p 10-15 accessed August 31, 2014, at
http://whaleyestatelitigation.com/resources/WEL_Disputes_Over_What_Remains_May2012.pdf.
9
Widdifield at para. 1.1 on p. 1-2.
10
Cremation, Interment and Funeral Services Act, S.B.C. 2004, c. 35, s. 5.
11
General Regulation, Alta. Reg. 249/1998.
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Quebec: Unless the deceased has specifically requested it, the liquidator does not have
the responsibility to deal with the funeral or disposal of the remains. Rather, it is the
responsibility of the heirs and successors to act. (art. 42 CCQ).
4.1.2.3 Deceased’s Wishes

Common Law Only: The executor has the authority to make the funeral arrangements
and decide how to dispose of the deceased’s remains. Generally, the deceased’s wishes
should be followed. However, the wishes are not binding on the executor. Neither are the
wishes of the family or beneficiaries.12 When the executor acts as a corporate trustee or
other professional and is in possession of the will, the executor should communicate any
known wishes in the will or in other documents as soon as possible to the family members
who usually attend to the funeral.
British Columbia (exception): In British Columbia a written preference by the deceased
is binding on the person who has the right to control the disposition of those remains if:
a) the preference is stated in a will or pre-need cemetery or funeral services
contract,
b) compliance with the preference is consistent with the Human Tissue Gift Act,13
and
c) compliance with the preference would not be unreasonable or impracticable or
cause hardship.14
Quebec Only: A person may determine the nature of his funeral and disposal of his
remains. In the absence of such wishes expressed by the deceased (either in writing or
otherwise), the wishes of the heirs and successors prevail (art. 42 CCQ).
4.1.2.4 The Costs of the Funeral and Disposition of Remains

Some people pre-arrange their funerals with a funeral home and some or all of the
arrangements may be pre-paid.
Common Law Only: If the deceased has died without pre-arranged funeral plans or if
his or her wishes were not communicated to anyone, the executor may wish to request
family members’ input on the decisions to be made.
The cost of the funeral and disposition of the body is a proper expense of the estate.
However, the cost must be reasonable in the circumstances and in keeping with the
station in life of the deceased. If family members insist on expensive arrangements, the
executor may refuse or require an agreement in writing that the additional cost will be
paid by the family. Where the estate is or may be insolvent, more modest arrangements
12
The wishes of the deceased may not be forced upon the executor. See Saleh v. Reichert (1993), 50 E.T.R. 143
(Ont. C.J.), where it was held that the administrator could follow the wishes of the deceased or family.
13
R.S.B.C. 1996, c. 211.
14
Supra note 10, s. 6.
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will be required. If the estate declares bankruptcy, reasonable funeral expenses will be a
first charge on the assets of the estate.
Reasonable costs of a marker or gravestone are also a proper expense of the estate.
Quebec Only: In the absence of wishes expressed by the deceased, the wishes of the
heirs and successors prevail, and the costs of the funeral and disposition of the remains
are charged to the succession (art. 42 CCQ). Costs include the costs of a marker or
gravestone.
4.1.2.5 Bereavement Airfare

Some airlines offer discounted rates for family members to travel to attend the funeral
of a close family member. However, the cost of travel to a funeral is not a proper estate
expense.
4.1.2.6 The Obituary Announcement

An obituary notice may be placed in a local newspaper. The cost may be paid for by
the estate.
4.1.2.7 Veterans’ Allowance

Veterans of Canada’s armed forces and their dependants may be eligible for burial,
pension, and other benefits if they meet the eligibility requirements. Veterans without
sufficient funds to cover their funeral expenses may be eligible for help from the Last
Post Fund. The local Veterans’ Affairs Office can be contacted for further information.
4.1.3 Communicate with Co-executor and Beneficiaries

Once the funeral has been dealt with it is important, especially for corporate executors, to meet
with the co-executors to review what will be required to administer the estate and clarify roles
and responsibilities.
The executor will also want to meet or communicate with the primary beneficiaries as soon as
possible to answer questions and set expectations. Beneficiaries can also be an important source
of information for the executor. When a lawyer or notary is assisting an executor, he or she will
guide the executor and/or assist with these communications.
When meeting or communicating with beneficiaries, the executor will want to explain the steps
required to administer the estate, how long it may take and when distributions may occur. It is
also important to review the different estate liabilities and expenses, including any compensation
that may be provided for or allowed. This helps set a realistic estimate of the anticipated net
value of the estate.
Following a meeting or call, prudent executors will reconfirm the key information provided to
the beneficiaries in writing. This ensures that the beneficiary has a record to refer back to if they
have questions or do not recall all of the information discussed.
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Establishing expectations early can also help minimize the risk of complaints, disputes and
unrealistic expectations about the amount and timing of distributions.
4.1.3.1 Decision-making with Multiple Executors

Generally, executors must act together. This can lead to practical issues when bank
accounts and investment accounts are required, or decisions to make payments must be
agreed to or approved.
Where there is a corporate executor, the corporate executor often has custody and control
over cash and investments for safekeeping. Their systems also ensure income can be
collected, investments can be sold, cheques can be issued, and all transactions are
recorded and coded for statement production. However this does not remove the need for
decisions to be made together and for payments to be approved. Each company will have
its processes for obtaining the approvals.
Common Law (Except Alberta): Where there is more than one executor, the general
rule is that executors act unanimously unless the testator has set out an exception in the
will. For example: A will may specifically permit majority rule decisions and/or give
authority to one executor to be responsible for certain administrative tasks. However, it
is possible for one executor to bind the estate so it is important to ensure that appropriate
safeguards are in place to avoid this from happening if there is a risk that one could act
without the other knowing.
Alberta: If there are two or more personal representatives, section 37 of the Estate
Administration Act,15 requires them to act unanimously unless the will or court directs
otherwise. Section 42 of the Act also provides that subject to the terms of the will, if there
are two or more personal representatives, and one dies, the survivor(s) continue.
Quebec: Where there is more than one liquidator, they must act “in concert”, in other
words, unanimously (art. 787 CCQ). The testator or, in the absence of a testamentary
provision, the heirs, may exempt the liquidators from acting by unanimous decision. If
one of the liquidators is prevented from acting, the others are given authority to take
steps to protect assets or perform acts requiring immediate attention.
4.2 OVERVIEW OF THE STEPS IN AN ADMINISTRATION
4.2.1 Milestones and Timelines

If there are no complex assets to deal with and/or litigation to be dealt with, a typical estate
administration can take 12-18 months to complete. While cash legacies and specific gifts might
be transferred early in the administration, there may be reasons that prevent even these
distributions from being made as quickly as beneficiaries may wish. Residue, often the largest
15
Supra note 2.
4-13
part of the estate, cannot be transferred until all debts and income taxes are settled. Depending on
the facts, this can take time.
In order to manage expectations, the prudent executor is advised to establish some general
timelines for the key milestones in the administration and indicate how often and/or when the
executor will send updates. The chart (see Figure 4.1 Timeline for an Estate Administration)
identifies the key steps and milestones. The steps and suggested timelines are only a guide.
Details will vary by jurisdiction and the facts.
NOTE: These rules apply to estates where there are sufficient assets to pay all debts, liabilities,
estate expenses and distribute all legacies and gifts. If the estate is insolvent special rules apply.
See Chapter 6 at 6.5.1 Insolvency. If debts, liabilities and estate expenses can be paid, but the
remainder is insufficient to pay all gifts and legacies, special rules apply. See Chapter 8 Estate
Beneficiaries.
Quebec Only: Note that it is possible for the heirs, by unanimous decision, to liquidate an estate
without following the prescribed rules for liquidation (art. 779 CCQ). However, by doing so they
become liable for payment of the debts of the succession personally, even beyond the value of the
property they receive from the succession.
Figure 4.1: Timeline for an Estate Administration
Steps in the Administration a Estimated Timelines b
1. Initial steps Within 1-2 weeks
• Locate and review will
o BC: Request a will search
o Quebec: Request will search certificates from the Chambre des
notaires du Québec and the Barreau du Québec
• Attend to funeral arrangements
• Identify immediate issues (e.g. accessing funds, payment of bills or rents,
securing assets)
• Confirm decision to accept the appointment
2. Prepare a summary of assets, liabilities, and beneficiaries. Activities include: 1-3 months
• Identify assets and gather information, including valuations
• Safeguard assets
• Redirect mail and cancel subscriptions
• Identify liabilities, and review liabilities and claims to confirm amount
due
• Identify and locate beneficiaries
Common Law Only: Advertise for creditors in accordance with provincial
rules or guidelines,
Quebec Only: Prepare the inventory (within 6 months and 60 days from the
date of death) and identify legatees.
3. Application for Probate: 3-5 months
Common Law Only: Apply for grant of probate or administration and attend
to all related requirements, including notice to creditors
Quebec Only: If applicable, apply for probate of will made before witnesses
or holograph will (4-6 weeks from date of death).
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Steps in the Administration a Estimated Timelines b

4. Confirm authority/Receive grant and collect assets: 4-6 months
Common Law and Quebec, if applicable: Receive grant from court and
initiate collection of assets.
Quebec Only: Once will search certificates are received, initiate collection of
assets, Publish Designation of Liquidator and Closure of Inventory on
RDPRM and in newspaper.
5. Determine estate tax liability in Canada and other jurisdictions and file returns minimum 6 months
as required
6. Collect and distribute assets and pay debts: 4-9 months
• Sell assets as required to pay debts and expenses
• Sell personal effects, vehicles and real estate that are not specific gifts to
beneficiaries or will not be transferred in kind
• Common Law Only: Transfer specific legacies and pay cash legacies
• Quebec Only: pay particular legacies (cash or property)
• Consider an interim distribution of residue to remainder beneficiaries
Quebec Only: See also footnote re solvency16
7. Receive Assessment Notice from Canada Revenue Agency (CRA) (in Quebec: 12-15 months
from both CRA and Quebec Revenue Agency) confirming no further taxes
due:
• Request clearance certificate to date of death
• File final tax return
8. Prepare final accounting 14-20 months
• Calculate fee
• Send accounts to beneficiaries for approval
• Common Law Only: Request approval to fee if there is no fee
agreement
• Set up trusts, if required
9. Final distribution after all clearance certificates have been received 16-22 months
Quebec Only: See also arts. 819-822 CCQ.
a. This is a high level summary of the key milestones in the administration of a solvent estate (e.g. has sufficient assets to pay all debts
and liabilities and all legacies. Chapters 5-10 provide more specific details about what is required at each stage. Insolvent estates are
beyond the scope of this course.
b. These timelines are approximate. They depend on the unique circumstances of each estate and provincial requirements. In addition,
there can be delays in receiving the grant from the court and/or the notice of assessment and clearance certificates from the CRA.
4.2.2 Immediate Financial Needs

In addition to setting expectations, the executor should determine if there are any immediate
financial needs to be addressed. If there are any urgent situations, the executor should determine
whether there are sources of funds or assets passing outside of the estate to the beneficiaries that
can be dealt with quickly in order to release funds to those who need them.
16
Quebec: Sale of estate assets and payment of debts and particular legacies will depend in part on the solvency of
the estate (arts. 808-814) and whether the testator has given the liquidator full powers of administration instead of
those conferred by law (simple administration, arts. 1301-1305 CCQ). (See Chapter 2 at 2.3 Personal
Representatives (Executors and Administrators (Liquidators in Quebec) for an introduction to the differences
between Simple and Full Administration.) Also, distributions and payment of expenses totaling less than $12,000
may be made prior to obtaining clearance from the Quebec tax authority, but the liquidator will be personally liable
for tax debts if he pays or distributes any amount over $12,000 without first obtaining clearance. See also Chapter 6
Estate Liabilities and Claims Against the Estate.
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4.2.3 Interpretation and Issue Identification

As discussed earlier (see Chapter 2, Trustees, Personal Representatives, and Substitute Decision-
makers), it is important for an executor to identify potential issues that may arise in the
administration as early as possible. Issues may relate to complexities or challenges that may arise
when dealing with a particular asset or liability, difficult or hostile beneficiaries, and/or potential
claims from spouses or dependants. These are all practical matters that arise during many
administrations. With some planning they can often be managed, ensuring the administration
goes as smoothly as possible.
In addition, it is possible that the words in the will itself are unclear or there may be problems
with the validity of the will or certain gifts. These issues are explored further in other chapters of
this course and in the Advanced Topics in Estate and Trust Administration course (CETA 2).17
4.2.4 Identify and Value Assets

The value of an estate and the individual assets are important for a number of reasons. These
include:
• The inventory and valuation forms the beginning of the accounting to the beneficiaries.
• When real property, investments, and other valuable assets have appreciated in value,
there will be capital gains tax payable on the net taxable capital gain.
• In jurisdictions where the spouse has a right to elect to take the spouse’s entitlement
under the will and/or applicable family law legislation, the value of assets and liabilities
are used to determine entitlements.
• Common Law Jurisdictions:
o The gross value of the estate may be subject to probate fees or taxes
o The executor’s fees are usually based on the gross value of the estate
For a review of the rules for valuing assets, see Chapter 5, Estate Assets. For a discussion of how
compensation is calculated and approved, see Chapter 9, Compensation and Expenses. See
Chapter 10, Estate and Trust Accounts, for a review of the requirements for accounting to the
beneficiaries and obtaining approval to accounts by the beneficiaries or the court.
4.2.5 Safeguard Assets and Identify Liabilities
4.2.5.1 Assets
As the executor identifies assets, steps may be required to safeguard the assets. This
could include moving valuables to safekeeping, changing locks, reviewing and amending
insurance, or arranging for a security service for a property. Financial institutions must be
notified that their client has died so that no funds are withdrawn and no investments are
sold. Income sources should be redirected as soon as possible. Each of these topics are
discussed further; see Chapter 5, Estate Assets.
17
This is the second course in the Certificate to Estate and Trust Administration program. Hereafter referred to as
CETA 2.
4-16
4.2.5.2 Debts and Liabilities

When identifying debts and liabilities, the executor must notify creditors of the death,
ensure all credit cards or other revolving debt are terminated to avoid further liabilities,
and gather information to confirm the amount due and determine whether or not claims
should be paid or disputed. To see how these matters are dealt with, see Chapter 6, Estate
Liabilities and Claims Against the Estate. The tax liability on the deceased’s final tax
return is also considered a debt as at the date of death. See Chapter 8, Personal Tax
Returns Due on Death, for an introduction to the rules governing taxation on death.
4.2.6 Identify and Locate Beneficiaries

While the beneficiaries for most estates can be readily located, sometimes they have not been in
recent contact with the deceased and must be located. In other situations the language of the will
is unclear or needs to be interpreted. Where a beneficiary has predeceased, it is necessary to
determine who takes the place of the deceased. For a review of the many rules that may apply
when identifying beneficiaries, see Chapter 7, Estate Beneficiaries.
In this Chapter we refer to the different types of beneficiaries. Brief definitions follow. See
below at 4.3 Order and Contents of a Will Including Common Clauses and Chapter 7 Estate
Beneficiaries for more details.
Common Law Only: When reviewing the will, there are generally five types of beneficiaries.
1. Legatees: Those entitled to receive cash or assets (with or without financial value).
2. Residual Beneficiaries: Those entitled to receive the residue after all debts, liabilities,
expenses, and legacies are paid. If there is a trust, these beneficiaries are often referred
to as capital beneficiaries.
3. Contingent or Alternate Beneficiaries: Those named to take the share of a beneficiary
who predeceases the testator or for some other reason is not entitled to the legacy or
residue.
4. Income or Revenue Beneficiaries: If there is a trust, the person(s) entitled to income
and, if authorized in the trust, capital encroachments.
5. Life Tenant: Sometimes used if there is a trust to describe the person who is entitled to
live in the home owned by the trust.
Quebec Only: When reviewing the will, all beneficiaries are referred to as legatees. There are
three types of legacies.
1. Particular Legatees: Those entitled to receive specific gifts of cash or property (e.g.
anything that is not a universal legacy or legacy by general title (art. 734).
2. Legacy by General Title: See below at 4.3 Order and Contents of a Will Including
Common Clauses.
3. Universal Legacy: See below at 4.3 Order and Contents of a Will Including Common
Clauses.
If there is a trust, the beneficiaries are usually referred to as:
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• Revenue Beneficiaries: The person(s) entitled to income and, if authorized in the trust,
capital encroachments.
• Capital Beneficiaries: The person(s) entitled to receive capital when the trust is
distributed.
4.2.7 Apply for Grant of Probate or Administration/Confirm Authority to Act
4.2.7.1 Common Law Only: Court Grants

In the common law jurisdictions, in order to deal with estate assets it is usually necessary
to apply to court for a grant of probate (where there is a will), or a grant of administration
(where there is no will, or the named executor(s) are unable to act). The court requires
information about the deceased’s assets and liabilities. As a result it can take some time
before the executor is in a position to apply for the grant. For the requirements for an
application, see 4.5 Grant of Probate or Administration.
4.2.7.2 Quebec Only: Notarial Wills and Wills Requiring Probate

In Quebec, wills made in the presence of witnesses and holograph wills are probated by
the Superior Court of Québec (arts. 772-775 CCQ). A notarial will, being an authentic act
and making proof of its contents against third parties, is not subject to probate.
If the deceased made a notarial will, the named liquidators may begin to proceed with
liquidation of the estate immediately after they have obtained proof that it is the last
known will. Proof is established upon receipt of the will search certificates from both
wills registers (art. 803 CCQ). If the deceased had no will, or the named liquidator and
alternates are unable or unwilling to act, then a majority of the heirs may appoint a
liquidator or may act jointly as liquidators (art. 785 CCQ). There is no statutory
requirement as to the form of the designation of a liquidator by the heirs, but it is best
practice to execute a notarial deed. If the heirs are unable to agree, the court may be
asked to appoint a liquidator (art. 788 CCQ). In all cases, the designation of liquidator is
published on the RDPRM (art. 777 CCQ).
The requirements for obtaining a grant of probate are discussed later in this Chapter (see
4.5 Grant of Probate or Administration).
4.2.8 Collect Assets, Pay Debts, and Distribute

Once the executor has confirmed the authority to act, for example:
• Common law provinces: the court has issued a grant of probate or grant of administration
• Quebec: the liquidator has received probate judgment (or probate), or, in the case of a
notarial will, has obtained will search certificates,
the executor is in a position to begin collecting assets. Once the assets are under the executor’s
control, and subject to the terms of the will or other governing laws, the executor is in a position
to sell assets to raise funds to pay debts. Once the executor is confident that all debts, liabilities,
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and administration expenses have been paid, he or she may pay cash legacies and transfer
specific assets to named beneficiaries.18
4.2.9 Account to Beneficiaries
4.2.9.1 Common Law Only: Accounting Requirements

The executor must provide an accounting to the beneficiaries who take the residue of the
estate. The accounting must include a list of all the assets at the date of death, including
the values, details of all dispositions, and details of all income received, liabilities paid,
and expenses incurred. See Chapter 10, Estate and Trust Accounts, for a review of these
requirements in more detail. If approval to compensation is required (e.g. there is no
compensation agreement), the executor will seek approval from the beneficiaries at this
time.
4.2.9.2 Quebec Only: The Inventory

The liquidator makes an inventory of the estate assets and liabilities as at the date of
death (arts. 794 and 1324-1331 CCQ) by notarial act or by private writing signed before
two witnesses. Closure of the inventory is published on the RDPRM (art. 795 CCQ) and
consultation of the inventory and supporting vouchers is made available to the heirs, the
successors who have not yet exercised their option to accept or renounce the estate, the
legatees by particular title and the known creditors (art. 796 CCQ). It is the liquidator’s
obligation to ensure that the creditors have a valid claim that is not prescribed (e.g. out of
time).
If the estate liquidation takes longer than one year, the liquidator prepares an annual
accounting that is rendered to the heirs, creditors and legatees by particular title who have
not yet been paid (art. 806 CCQ).
See Chapter 10, Estate and Trust Accounts for further information. See Chapter 7 Estate
Beneficiaries for more information on the different beneficiaries and Chapter 6 Estate
Liabilities for information on estate creditors.
4.2.10 Distribute and Wind Up Administration

The final steps in the administration are the acceptance of the executor’s final account, discharge
of the executor by the beneficiaries (or the court), and the distribution of remaining assets (i.e.
the residue) to the beneficiaries or, if applicable, to the testamentary trust created in the will. As
noted in the timeline (see Figure 4.1 Timeline for an Estate Administration), this can take sixteen
to twenty-two months or more. When the estate has complex assets to deal with or sell, legal
issues or creditor claims to resolve, division of family property to settle or claims from spouses
and dependants to resolve, the administration can take three years or more to complete.
18
Quebec Only: Distributions may proceed if the estate is “manifestly solvent” i.e. on the face, the assets exceed
liabilities.
4-19
4.2.11 The “Executor Year”
4.2.11.1 Common Law Only: The “Executor’s Year”

Generally an executor cannot be forced to make any distribution or any payment of
income during the first year of administration of the estate. This period is called the
“executor’s year”. The reason for the rule is that until the assets and liabilities are
determined, the executor will not be in a position to determine what funds, if any, are
available for distribution.
However, the administration may take longer than a year and, again, distribution cannot
be compelled if the delay is justifiable. Examples include where there is litigation over
beneficiary entitlements, actions by or against the estate, or there are substantial assets
that need to be sold such as a property or a business.
The executor year is also relevant when a cash legacy is paid after the executor’s year.
The beneficiary may be entitled to interest. See Chapter 7 Estate Beneficiaries.
4.2.11.2 Common Law Only: The Executor’s Year for Tax Purposes
The common law “executor’s year” is also recognized for tax purposes and may be
relevant to whether the estate or the beneficiary should pay the tax on income earned
during that period. See Estate and Trust Taxation course (CETA 3).19
4.2.11.3 Quebec Only: When Beneficiaries Are Entitled to Payment

Quebec law does not have a rule similar to the common law executor year rule. If the
estate is manifestly solvent (i.e. on the face, the assets exceed liabilities), the liquidator
pays creditors and particular legatees when they present themselves or when the debts
become due (art. 808 CCQ). Particular legatees are entitled to interest from the date of
death unless an express exemption is contained in the will. It is customary to provide in
the will that cash legacies are made “without interest”. See Chapter 7 Estate Beneficiaries
for more information.
If the estate is not manifestly solvent, the liquidator may not pay debts or legacies until
60 days following publication of closure of inventory (or exemption from making an
inventory) (art. 810 CCQ). If the estate is insolvent, a payment proposal must be
homologated by the court prior to payment of debts or legacies (arts. 811-814 CCQ). See
Chapter 6 Estate Liabilities and Claims Against the Estate for more information.
4.3 ORDER AND CONTENTS OF A WILL INCLUDING COMMON CLAUSES

Wills often follow a common structure or outline. Each component of this structure is reviewed
below. A sample will with a testamentary trust can be found on the STEP website for students
19
This is the third course in the Certificate to Estate and Trust Administration program. Hereafter referred to as
CETA 3.
4-20
under “Student Resources”. A sample notarial will from Quebec is also found under “Student
Resources”.
When reviewing the sample will, look for the different clauses. If you work in an office that
administers estates, review some other wills. Although there are differences in drafting styles,
many of the components or clauses discussed below should be identifiable.
4.3.1 Identification of Testator and Testamentary Intent

The testator is identified by his or her full name and place of residence. There is often a
statement declaring the document to be the testator’s last will.
4.3.1.1 Quebec Only: Domicile and Matrimonial Status and Regime

The will customarily states the testator’s domicile, matrimonial status and regime, and if
there has been a renunciation to the family patrimony.
4.3.1.2 Funeral Arrangements

Funeral arrangements or instructions may also be addressed in the will.
Common Law Only: Funeral and burial wishes are usually included at the end of the
will.
Quebec Only: Funeral instructions may be in a separate document referred to in the
will.
4.3.2 Revocation
Most wills include a general statement revoking all prior wills. However a revocation clause is
not required to revoke the will and it is not necessary to refer specifically to previous wills. See
Chapter 3 at 3.4 Revocation of a Will.
If a will is a second will dealing with specific assets only, and the testator does not intend to
revoke the first will, these facts would typically be acknowledged to ensure that the making of
the new will does not revoke the earlier will that deals with other assets or assets in another
jurisdiction.
If a will is being made in contemplation of marriage, and the testator does not want the will to be
revoked when the marriage occurs, the testator’s intentions are acknowledged here.20
4.3.3 Definitions
A definition section is more common in inter vivos trusts. However, they may be used in a will
for the convenience of the testator or others reading the will. Definitions can also help reduce the
risk of drafting errors.
20
In most jurisdictions, marriage revokes a will. See Chapter 3 The Law of Wills.
4-21
4.3.4 Beneficiary Designations

The proceeds of life insurance policies and registered savings plans (e.g. RRSPs, RRIFs, and
TFSAs) become assets of a deceased person’s estate unless, prior to death, the owner designates
a person or persons to be a beneficiary or successor to the insurance or plan proceeds. The
designation is made in writing on a form provided by the issuer of the policy or registered plan
and the rules vary depending on the type of policy or plan.21
When there is a valid designation (e.g. permitted under the applicable provincial law and
properly completed), the proceeds pass to the named beneficiary(ies). The assets are not part of
the estate assets and generally are not available to satisfy debts to creditors. In some situations,
proceeds from a policy or plan may also be paid to a trustee to hold on trust. In these situations a
separate trust document may be prepared. See Chapter 3 at 3.7 Will Substitutes: Other Ways to
Transfer Property on Death or in Advance of Death. See Chapter 5 Estate Assets for more
information about registered plan assets.
NOTE: There are three types of TFSAs that can be offered: a deposit, an annuity contract, and
an arrangement in trust. The only person who can be appointed as a successor is the spouse or
common-law partner (as defined in the Income Tax Act). See Chapter 5 Estate Assets for more
information. For purposes of this Chapter, a TFSA is referred to as a type of registered plan.
4.3.4.1 Common Law Only: Beneficiary Designations in a Will

Most jurisdictions also permit beneficiary designations of life insurance and registered
plans to be made in a will. The requirements for these designations are strict. Typically
they are included in the will before the appointment of the executor since they will not
form part of the estate to be administered.
When the designation is in the will the terms of the trust are often set out in the will.
4.3.4.2 Quebec Only: Limits on Beneficiary Designations in a Will

Beneficiary designations of a life insurance policy may be made in the policy, or in a will
(arts. 2445 and 2446). In either case, the proceeds do not form part of the succession (art.
2455).
There is no specific legislation in Quebec permitting beneficiary designations for RRSPs
or other registered plans or to designate a successor holder of a TFSA. In Quebec, the
designation of a beneficiary to receive benefits upon the death of the plan holder or
account holder, as a liberality or by gratuitous title, is characterized as a matter of
succession. Such designations are valid if made in a testamentary disposition as a legacy.
However if the registered plan is a life insurance product, the designation can be in the
policy or the will (arts. 2445 CCQQ & ff.). They are also permitted if the RRSP or other
plan is structured as a valid trust or constitutes an annuity governed by the law of
21
See Chapter 5 Estate Assets and Chapter 7 Estate Beneficiaries for more information.
4-22
insurance (see arts. 2379 and 2393 CCQ). In these situations, if a valid designation is
made, the assets fall outside of the estate.
Since registered accounts that are life insurance products are relatively uncommon in
Quebec, many wills include a particular legacy regarding the proceeds or benefits of such
plans. In these situations, a provision indicating who is entitled to the plan will be located
with other legacies in the will. The assets do not pass outside of the estate. See article
2456.
4.3.5 Appointment of Executor(s) and Trustees and Alternates

The appointment provisions identify one or more persons or corporate trustee to be the executor
of the will. If the will establishes a trust, the executor is often named as trustee of the trust(s) as
well. The will may identify an alternate or successor executor should the first named executor(s)
predecease or be unable or unwilling to act or continue to act. In some situations, the will may
set out a process for appointing a successor executor or trustee (e.g. one or more beneficiaries
may be authorized to decide who should be appointed).
If there is more than one executor named, this section of the will often indicates if a survivor can
continue to act alone or identifies who should be the successor if one cannot act or continue to
act. The clause, or a later clause, may also set out instructions on how decisions are to be made
(e.g. unanimously or by majority) and deadlocks resolved.
4.3.6 Transferring Property to the Executors
4.3.6.1 Common Law Only: Vesting Property in the Executors

This clause vests all of the testator’s property in the executor in order that the executor
may administer the estate. Vesting in this context refers to the transfer of legal title to the
executor so that the executor may sell or otherwise deal with the assets or transfer them to
beneficiaries. When dealing with third parties the executor may need to prove the
executor’s title under this provision by providing a copy of the grant of probate.
4.3.6.2 Quebec Only: Authority of the Liquidator (seisin)

Transmission of the succession occurs automatically by operation of law, although
certain formalities are required in some cases to ensure effective transfer of title.
The law provides that the heirs have seisin of the property, rights and obligations of the
deceased (art. 625 CCQ), and a legatee by particular title is seised of the property
bequeathed to him or her (para. 2 of art. 739 CCQ). However, article 777 CCQ provides
that the liquidator exercises the seisin of the heirs and legatees by particular title from the
opening of the succession and for the time necessary for the liquidation. “Seisin” can be
defined as the right to effectively control and possess the deceased’s patrimony.
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Given the foregoing rules, it is not necessary for the will to formally transfer the property
to the liquidator. However, the testator may modify the seisin, powers, and obligations of
the liquidator (art. 778 CCQ).
NOTE: When modifying the powers of the liquidator, the testator may not limit the
powers to the extent that the liquidator would be prevented from accomplishing an act
necessary for liquidation, or be exempted from making an inventory. Such clauses would
be deemed unwritten.
4.3.7 Expenses and Sale of Assets – Disposition of the Estate

Next are the provisions of the will that deal with the disposition of the estate assets.
Common Law Only: These provisions are often called the “dispositive” provisions.
The typical provisions dealing with the disposition of the estate assets are summarized below.
4.3.7.1 Payment of Funeral Expenses, Debts, Taxes, and Other

Testamentary Expenses
This clause confirms that these payments must be paid before any other gifts under the
will are transferred or paid. Any clarifications to this general rule for specific
circumstances may be set out here.
4.3.7.2 Common Law Only: Conversion and Retention of Assets

Executors are required to collect any assets (e.g. funds in bank accounts) or transfer title
to the assets such as investments and real estate to the executor so that the executor can
sell or otherwise deal with the assets or transfer them to the beneficiary(ies).
When a deceased dies owning assets such as real estate or investments that are not
specifically gifted to a beneficiary, the executor is generally required to dispose of the
assets.
The law also says that the executor should not speculate as to when it is the best time to
sell. Rather, the asset should be sold at the first opportune time. However, it may not be
practical or prudent to sell an asset. There may also be situations where the
beneficiary(ies) want to receive the asset(s) “in kind” to avoid triggering a tax liability or
for some other reason. If there is a testamentary trust, the trustee may wish to retain the
asset(s).
This clause often gives the executor discretion as to whether or not, and when, to sell (or
convert) the assets. The testator may also direct that a particular asset be retained in an
ongoing trust for a specified reason or period of time. For example, the testator may want
the family home to be retained until the surviving spouse no longer wishes to live in it.
See 4.3.7.6 Trusts for Specific Assets or Purposes.
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4.3.7.3 Quebec Only: Realizing Assets

A liquidator is an administrator of the property of others (art. 802 CCQ) charged with
simple administration (art. 1301 CCQ) unless otherwise stipulated by the testator (art.
778 CCQ). Therefore, the liquidator realizes the assets to the extent necessary to pay the
debts and legacies by particular title (art. 804 CCQ).22 To do this, the liquidator may
alienate, alone, property that is perishable, likely to depreciate, or that is expensive to
preserve. The liquidator may also alienate other property with the consent of the heirs or
authorization of the court.
The testator may derogate, which is often the case, from these rules by conferring more
extensive powers of administration on the liquidator such as the powers of full
administration (art. 1306 CCQ).
4.3.7.4 Specific Gifts (Legacies)

Specific gifts include personal effects or assets that the testator wants to give to a
particular beneficiary. They also include gifts of specified cash amounts, which are often
referred to as “cash legacies”, or gifts of specified property.
Common Law Only: Gifts of personal property and cash are sometimes referred to as
“bequests”. If the gift is a gift of land, it may be called a “devise”. The terms “bequest”
and “devise” are used less frequently. Generally, any specific gift can be referred to as a
legacy.
Quebec Only: Gifts of specific property or cash amounts are referred to as particular
legacies.
For purposes of this course, a reference to a legacy refers to gifts of specific assets or
cash amounts. See Chapter 7 at 7.1 Classes of Gifts and Beneficiaries for more complete
definitions and the different types of legacies.
4.3.7.5 General Disposition of Personal and Household Effects

Many wills include a general clause that deals with the delivery of the testator’s personal
and/or household effects to certain beneficiaries. Alternatively, the testator may have
very clear wishes on how these items should be distributed. Personal effects can also
include items that have nominal monetary value, but significant sentimental value.
If the testator wishes to specify who should receive which items, distribution of these
items may be set out in the will. If there is a long list of items the testator may prepare a
memorandum expressing his or her wishes.
Common Law Only: If the testator intends that the memorandum be binding it must be
incorporated into the will by reference. (See Chapter 3 at 3.2.2.5 Common Law Only:
Doctrine of Incorporation by Reference.) If the memorandum is not incorporated, it will
not be binding.
22
Legacies by particular title are discussed later in this course (see Chapter 7 Estate Beneficiaries).
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Quebec Only: If the memorandum is in the form of a will, it can be probated as a codicil
and is binding. Otherwise, it is treated as a list of wishes. The Doctrine of Incorporation
by Reference is unknown in Quebec civil law.
4.3.7.6 Trusts for Specific Assets or Purposes

When a testator wishes to establish a trust to hold specific assets, such as a home or
family cottage, or wants to set aside a specific fund for a purpose or a person or persons,
the assets or funds are specifically identified and the terms of the trust will be set out
here, or later in the will.
4.3.7.7 Residue Clause

This is the main provision in the will disposing of the estate. It disposes of the remainder
(or residue) of the estate.
A well drafted residue clause also addresses contingencies, such as who should take the
share of a beneficiary who, for example, died before the testator, renounces the gift, or is
not permitted to take the gift (e.g. if the beneficiary is divorced from the testator). The
clause that addresses such contingencies provides for an alternate beneficiary(ies) and is
often referred to as a “gift over”.
A residue clause may also establish one or more testamentary trusts. For example, there
may be a trust for the surviving spouse, children, grandchildren, or charitable purposes.
When trusts are included, a number of additional provisions will be included. These
include provisions that:
• identify the beneficiaries entitled to income and/or capital during the existence of
the trust;
• name the trustees if not already provided for;
• set out the powers, duties, and/or directions to guide the trustees during the
administration; and
• establish the event or date that triggers a final distribution.
4.3.7.8 Quebec Only: Residue Clauses – Two Types of Legacies

Residue clauses can provide for two types of legacies under the CCQ.
• A universal legacy entitles one or more persons to take the entirety of the
succession (art. 732 CCQ).
• A legacy by general title (art. 733 CCQ) entitles one or more persons to take:
a) the ownership of an aliquot share of the succession (e.g. 30% of the residue);
b) a dismemberment of the right of ownership of the entirety or an aliquot share
of the succession (e.g. a right of use and habitation); or
c) the ownership or a dismemberment of the right of ownership of the whole or
an aliquot share of all of a particular type of property, such as immovable or
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movable property, private property, community property, or acquests (e.g. all

immovables).
The list at article 733 CCQ is exhaustive. Therefore, if a gift is not a universal legacy, or
does not fall under the definition of a legacy by general title, the legacy will be a
particular legacy.
See Chapter 7 at 7.1.2 Types of Legacies (Gifts) Made by Will for more information.
4.3.7.9 Assets Received Before Death

From time to time a beneficiary receives a gift of property or money from the testator
before the testator’s death. The question arises: Should the gift be deducted from the
beneficiary’s share of the estate? The will may address the situation. If not, the relevant
rules are briefly described below. See also Chapter 7 Estate Beneficiaries.
Common Law Only: Hotchpot Clauses – If a beneficiary received assets outside of the
estate prior to or upon the death of the testator, and that beneficiary is one of a class of
beneficiaries (e.g. the children of the deceased) entitled to share the residue equally, a
hotchpot clause requires the value of the assets received outside of the estate to be taken
into account when calculating and dividing the residue of an estate among all of the
residual beneficiaries. In effect, it equalizes the distribution.
Quebec Only: An heir is only bound to return to the mass of the succession what he or
she has received from the deceased by gift or by will23 if there is an express obligation in
the will for the heir to do so (art. 867 CCQ). A successor who renounces the succession is
under no obligation to make any return.
4.3.7.10 Survivorship Clause

A survivorship clause sets out the number of days that a beneficiary must survive if he or
she is to be a beneficiary. If the beneficiary does not survive the required number of days,
he or she is deemed to have predeceased the testator and the will is interpreted
accordingly (see Chapter 7 Estate Beneficiaries).
A survivorship clause can have important implications for those who will be the
beneficiaries of an estate.
Survivorship clauses can range from five to ten or fifteen days or, particularly in Quebec,
as long as thirty, sixty, or ninety days. While survivorship clauses serve a purpose, a long
period may cause delays in the administration.
Common Law Only: Where the ultimate distribution of residue is identical, survivorship
clauses can also help to avoid the risk of successive applications for probate for the same
assets and the applicable probate fees.
23
Technically a legacy in a will is classified as a gift mortis causa and is captured by this rule.
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Example: Lily and Jose have three adult children. Their wills leave 100% of the estate
to the surviving spouse in trust. On the death of the spouse, the remainder is to be
divided among the three children. Lily and Jose are in an accident. Lily dies on
February 1st. Jose dies on February 16th. Without a survivorship clause, Lily’s estate
must be administered and the assets transferred to Jose. Jose’s will must then be
administered. If probate is required, then this will add to the cost and time.
In addition to the time and cost of completing the administrative steps involved, in
provinces where there are high probate fees, the fees will be paid twice. If the will had
required a 30-day survivorship period, then Jose would have been deemed to
predecease and Lily’s estate could have been distributed directly to the three children
and the probate fees on Jose’s assets would only have been paid once.
4.3.8 Payments to Minors (Under the Age of Majority)

When a beneficiary is under the age of majority, he or she is unable to give a valid receipt.
Although each jurisdiction has default rules on where to pay funds due to a minor, many wills
give the executor or trustee authority to pay or deliver the gift to a parent or guardian (or tutor, in
Quebec),24 or directly to the beneficiary. The clause will also release the executor from any
future liability to the minor for following these instructions. The will may also direct the
executor to hold the gift in trust for the minor and to distribute the gift or funds when the minor
turns the age of majority.
Quebec Only: There is also a distinct form of administration available for minors called
“prolonged administration”. In this form of administration the liquidator is authorized to hold
and administer the minor’s gift to a specified age, even beyond the age of majority.
Interpretation of “prolonged administration” clauses has given rise to many difficulties, so they
must be carefully reviewed and any interpretation issues should be referred for legal advice.
4.3.9 Administrative Provisions

The executor’s powers found in a will usually provide maximum flexibility and discretion to deal
with the assets during the administration of the estate. Without these terms, the executor’s powers
will be limited to the default powers set out in provincial legislation.
24
NOTE:
Common Law Only: The term “guardian” is used in most common law jurisdictions to refer to the person(s)
responsible for a child’s personal and financial affairs. Students should note that, as discussed in Chapter 2 (see 2.5
Substitute Decision-makers), guardian is a generic term for a person appointed to manage an adult’s financial and/or
personal affairs. See also Chapter 11 Substitute Decision-makers for Financial Affairs.
Quebec Only: The term “tutor” is used to refer to the person responsible for a minor’s estate. Students should note
that, as discussed in Chapter 2 (see 2.5 Substitute Decision-makers), a tutor may also be appointed to manage an
adult’s affairs (see also Chapter 11 Substitute Decision-makers for Financial Affairs).
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Quebec Only: As noted above, the liquidator’s powers are limited to simple administration if the
will is silent (art. 802 CCQ).
Many wills include one or more of the following provisions allowing the executor to:
• make investments at their discretion;
• borrow, mortgage, or give guarantees;
• lend or advance any amount to a beneficiary;
• pursue, defend, or settle any claims or debts;
• make elections permitted by statute or regulation;
• hire agents and professional advisors;
• determine income, capital receipts, and disbursements;
• deal with shares of corporations or other securities;
• deal with real property; and
• (where applicable under provincial laws) sell or alienate property without the consent of
the beneficiaries.
Other administrative provisions in a will may include:
• protection for executors from liability for any loss that occurs if the executor was acting
in good faith,
• permission for executors to purchase property from the estate,
• permission for professional advisors who are executors to take their normal professional
fees,
• executor compensation (within the will or in common law jurisdictions, an agreement
incorporated by reference),
• appointment of guardians for a testator’s minor children,
• provisions related to family law issues and elections,
• wishes for donation of body and organs, and
• funeral and burial instructions or wishes.
Some trusts, including testamentary trusts, may also include a provision stating the law that
should govern the administration,25 and/or give the trustee power to amend that law.
Quebec Only: A choice of law clause for the succession may also be included, provided it is the
law of the State of the testator’s nationality or domicile at the time of the designation or of his
death, or the law of the place where an immovable owned by him or her is situated, but only with
regard to that immovable (art. 3098 CCQ). The designation of law is without effect, however, if
it would deprive the spouse or a child of the deceased of a right of succession to which such
spouse or child would have been entitled in the absence of such designation (art. 3099 CCQ).
The newly enacted European Union Succession Regulation may allow other choices, depending
on circumstances. The Regulation is beyond the scope of this course.
25
In Quebec see art. 3107 CCQ.
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4.3.10 Signature and Witness Clause
4.3.10.1 Common Law Only: Testimonium Clause

A testimonium clause is a statement at the end of the will stating that the testator declared
it is his or her last will and identifying who was present and signed the will. Subject to
special circumstances (e.g. where the testator cannot physically sign and must direct
someone to sign on his or her behalf), it will indicate that the testator signed the will in
the presence of the two named witnesses, that the witnesses were both present at the same
time, and that they signed in front of the testator and the other witness. See sample will
on the STEP website for students under “Student Resources”.
4.3.10.2 Quebec Only: Declaration Clause

Wills made in the presence of witnesses contain a declaration by the testator that the
document is his or her will, and that the witnesses have signed in the presence of each
other and of the testator.
Notarial wills also have formal requirements. See the notarial will in the “Student
Resources” for an example. The relevant provisions are found at the beginning of the
document, where the notary, witness, and testator are identified, and at the end, before the
signatures, there is a statement that the testator confirmed the document expresses the
testator’s last wishes and that all three signed in each other’s presence.
4.4 APPOINTMENT OF EXECUTOR (LIQUIDATOR IN QUEBEC)
4.4.1 Common Law Only: Acceptance of Role of Executor Under a Will

A will speaks from death and an executor’s authority begins immediately. A grant of
probate is often required to confirm the executor’s authority. See 4.5.5 Reason to Obtain a
Grant of Probate.
An executor appointed in a will has no legal obligation to accept the appointment when the
testator dies. Therefore, it is prudent for the executor to turn his or her mind to the decision
– will I accept or renounce?
If a decision is made to renounce the appointment, the person(s) named as alternate
executor(s) must consider whether or not to accept the appointment. If none of the named
executors or alternate executors are alive or able or willing to act, another person (or
corporate trustee) must be identified who is willing to administer the will.
Once someone is identified, he or she will apply to administer the estate according to the
will. If there is no will, an application to court is required to appoint an administrator. See
4.5.7 Types of Grants.
4.4.2 Quebec Only: Appointment of a Liquidator

There are four modes of designation of a liquidator. They are:
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1. by operation of the law,

2. by will,
3. by the heirs, or
4. by the court.
The testator may also provide for the liquidator’s replacement by specifically naming
alternates or providing a replacement mechanism.
When there is no liquidator named in the will who is able to act, or where there is no will,
the office of liquidator devolves to the heirs by operation of law (art. 785 CCQ). The heirs
may appoint a liquidator (one of them or a third party) and provide for the mode of his or
her replacement, by majority vote (art. 785 CCQ). Such a designation should be in writing,
to facilitate proof of the appointment to third parties.
Where it is impossible to appoint a liquidator, the court may do so, on application by an
interested person (art. 788 CCQ). Likewise, any interested person may apply to the court for
the replacement of a liquidator who is unable to assume the responsibilities of the office,
who neglects his duties or who fails to fulfil his obligations (art. 791 CCQ). Moreover, any
interested person may apply to the court for an appropriate remedy where a liquidator has
not been designated, where he delays to accept or decline the office, or where he is to be
replaced (art. 792 CCQ).
NOTE: In Quebec, the terminology regarding administration of successions was modified
in 1994. Consequently, where a person has been designated by will (typically when drafted
prior to 1994) to “liquidate the succession” or “execute” the will, they nonetheless have the
quality of “liquidator” whether the testator has used terms such as “administrator of the
succession”, “testamentary executor”, or otherwise (art. 786 CCQ).
4.4.2.1 Acceptance of Appointment

No person is bound to accept the office of liquidator unless he or she is the sole heir
(art. 784 CCQ). Acceptance of the office may be express or tacit, but renunciation or
refusal to act ideally should be express. A written instrument under private signature
is sufficient for this purpose.
4.4.2.2 Who May Act as a Liquidator?

The liquidator must be fully capable of exercising his or her civil rights (art. 783
CCQ) at the time the succession opens.
A person who is a beneficiary may also act as a liquidator alone, unlike the rule for a
trustee at article 1275 CCQ.
A legal person authorized by law to act as a liquidator may also hold the office of
liquidator (para. 2 of art. 783 CCQ). Currently, only Quebec trust companies and
duly authorized extra-provincial trust companies are permitted to do so.26
26
Section 170 of An Act Respecting Trust Companies and Savings Companies, C.Q.L.R., c. S-29.01.
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4.4.2.3 Where There Is More Than One Liquidator

Where there is more than one liquidator, they must act together “in concert”
(unanimously) unless exempted from doing so by the will or the heirs (art. 787
CCQ). If one of them is unable to act, the other liquidator(s) may alone perform acts
of a conservatory nature or requiring dispatch.
4.4.2.4 When Security Is Required

A liquidator is not required to take out insurance or furnish other security to
guarantee the performance of his or her obligations unless required to do so by the
testator, the majority of the heirs, or the court (art. 790 CCQ). A liquidator who is
required to furnish security and fails to do so forfeits the office unless exempted by
the court.
4.4.3 Deciding Whether or Not to Accept an Appointment

Prior to making the decision to accept the role, if not familiar with the current status of the
deceased’s affairs, an executor may wish to make further inquiries in order to be able to
make an informed decision on whether or not to accept the appointment. See Chapter 2 at
2.7.4 Accepting a Fiduciary Appointment.
When inquiries are required, the decision to accept can take a few days. In complex situations, it
can take longer. If delays occur, the named executor must be mindful of the need to ensure that
assets are being safeguarded. However, during this time, the executor should not deal with the
assets, or represent him- or herself as the executor and provide instructions in that capacity.
An executor may wish to renounce the appointment for a number of reasons including:
• the executor was not aware of the appointment;
• the executor does not feel qualified (and/or does not have the time) to fulfill the duties
and responsibilities that will be required;
• there is a concern that the beneficiaries will not accept the executor’s authority and
relationships will be difficult;
• the estate is insolvent and the executor may not be paid; and/or
• the executor intends to make a claim against the estate and would be in a conflict of
interest.
Quebec Only: There is not an absolute prohibition against acting as liquidator if the liquidator
intends to make a claim. A liquidator who has an action to bring against the estate notifies the
Minister of Revenue, who acts as “ad hoc liquidator” unless the heirs or the court appoint
someone else (art. 805 CCQ).
If there will be more than one executor, it is also important to consider whether or not the
executors will be able to cooperate and work with each other. Estates can be difficult to manage
where executors frequently disagree. Unless the conduct of the difficult executor warrants
removal, compromises may be required and delays may occur.
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A court will be reluctant to permit a resignation due to a poor relationship with another executor.
In addition, the court will generally refuse to remove an executor on the grounds of a poor or
hostile relationship with a co-executor or beneficiary even where the administration of the estate
is stalled. If removal is sought, the court will often look for specific malfeasance or wrongdoing
by the executor who is the subject of the application.
4.4.4 Acting Before Acceptance
4.4.4.1 Common Law Only: Intermeddling (Executor de son Tort)

In the early days following a person’s death, a number of issues must be addressed
including:
• arranging the funeral and disposition of the remains,
• safeguarding assets, and
• gathering information to determine whether or not the executor named in the will
should accept the appointment or another person should apply to become the
administrator.
The law recognizes that some matters require immediate attention. These include funeral
arrangements, safeguarding assets, and gathering information. However, there is a point
at which one’s decisions and actions take on the authority of the personal representative
and one is said to have “intermeddled”.
Where there has been intermeddling, whether or not named as the executor, one may
become liable to the estate for actions taken. If the named executor has crossed this line
and intermeddled, it may no longer be possible to renounce the appointment. If a person
who is not named as an executor has interfered with the administration, his or her acts
may be binding on the estate and he or she may be found to be an “executor de son tort”
(an executor “by his own wrong doing”) and liable for any losses that may arise.27
Where there is any concern that it may not be appropriate to accept an appointment as
executor, one should exercise extra care to ensure that inquiries and any efforts to
safeguard assets do not cross that fine line between making inquiries and assuming
control of the administration of the estate.
4.4.4.2 Quebec Only: Acting Before Acceptance

If a person, in good faith, believes he or she is liquidator, his or her acts are valid and
may be set up against anyone (art. 793 CCQ). However, he or she will not be entitled to
remuneration (art. 1300 CCQ).
Unless the liquidator is the sole heir and bound to accept the office of liquidator (art. 784
CCQ), a liquidator may resign after accepting the office (arts. 1357 & ff. CCQ) but may
27
For further discussion, see Feeney at paras. 8.2-8.5.
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be required to indemnify the beneficiaries of his or her administration if the

heir/liquidator resigns at an inopportune time (art. 1359 CCQ).
An heir who accepts the office of liquidator has tacitly accepted the succession (art. 637
CCQ) and has lost the protection of limited liability available to a liquidator.
Accordingly, an heir should take care to not accept the succession without making
appropriate inquiries and/or seeking legal advice.
Where no liquidator is designated, or where the liquidator delays accepting or declining
the office, any interested person may apply to the Superior Court to have a provisional
liquidator appointed or to have any other order rendered that is necessary to preserve the
interested person’s rights (art. 792 CCQ).
4.4.5 Renunciation
4.4.5.1 Common Law Only: Steps to Renounce

If an executor has not intermeddled and wishes to renounce, the first step is to review the
will to determine if an alternate has been named. If there is no alternate named, or the
alternate is unable or unwilling to act, another person or a corporate trustee may consider
applying to be appointed to administer the will. See 4.5.7 Types of Grants. The
documents filed with the application to court will include an affidavit that confirms that
the executor renounced the appointment.
4.4.5.2 Quebec Only: Resignation of the Appointment

If a liquidator wishes to resign, written notice must be provided to the beneficiaries of the
administration (i.e. the heirs) (art. 1357 CCQ) and to any co-liquidators in order for the
resignation to be effective.
In the absence of a mechanism in the will that provides for replacing the liquidator (e.g. a
named alternate or designation of who may appoint an alternate), and failing agreement
among the heirs, any interested person may apply to the court for the designation of a
replacement liquidator (art. 788 CCQ).
4.5 GRANT OF PROBATE OR ADMINISTRATION
4.5.1 Quebec Only: Probate Procedure

Where probate is required in Quebec, it is generally a simple, expeditious, and inexpensive
procedure, and there are no probate fees imposed. For example, notification requirements are
restricted to heirs mentioned in the will and there is no requirement to file an inventory. The
procedure and related rules are discussed below.
4.5.1.1 The Probate Procedure
Probate is the procedure by which the court verifies that the testator has died, that he or
she is the author of the will, and that the will is valid as to form. An application for
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probate is made by motion to institute proceedings, which must be served on the known
heirs and successors named in the will, unless a dispensation is granted by the court (arts.
308-311 CPP28). Customarily it is the liquidator who applies, but article 772 CCQ states
that any interested party may apply.
The application is made before the court where the testator had his last domicile, or, if he
was not domiciled in Quebec, before the court of the district in which he died or left
property (art. 46 CPP).
The will, once probated, is deposited at the office of the Superior Court clerk, who issues
certified copies of both the probate judgment and the will itself to interested parties (art.
461 CPP).
At the probate stage, the court does not have jurisdiction to hear grounds of nullity such
as lack of capacity or undue influence; a separate action in nullity would need to be
taken.
Although it is not required by statute to file will search certificates with the application
for probate, it is best practice to do so as they make proof of the absence of other or
subsequent registered testamentary dispositions.
4.5.1.2 Small Estates

Banks or other financial institutions may release assets if the estate is under a certain
dollar limit if the liquidator provides the relevant information about the estate assets and
distribution, and agrees to sign a release and indemnity.
4.5.1.3 Application for Probate to a Quebec Notary
If the application for probate is not contested, an application may also be made to a
Quebec notary (art. 312 CPP). The original will is deposited with the notary, who issues
certified copies to interested parties. The notary’s minutes of probate are filed with the
Superior Court of Quebec for the sole purpose of securing public notice (art. 319 CPP).
It is preferable to apply to the court directly for probate if the probated will is to be used
outside of Quebec for the transfer of assets. The court judgment will be readily
recognized while the notarial minutes may be questioned in a foreign jurisdiction.
NOTE: Quebec students should continue reading at 4.6 Role of Estate Legal
Professional.
28
The new Code of Civil Procedure, C.Q.L.R., c. C-25.01, came into force on January 1, 2016 (“CPP”).
4-35
4.5.2 Common Law Only: Reasons for Obtaining a Grant

As noted earlier, the authority of an executor appointed under a will arises immediately upon
the death of the testator and derives from the will itself. However, in many situations it will be
necessary for the executor to obtain a grant of probate from the court in order to prove the
executor’s authority to deal with, and administer, the assets of the estate. The grant may also be
required for other reasons.
When there is no will, or the named executor has predeceased or is unable or unwilling to act,
a person or corporate trustee may apply to be the administrator of the estate. See 4.5.7 Types
of Grants. Unlike an executor, an administrator’s authority only begins when appointed by
the court. If a person has intermeddled, he or she may be required to continue to act.
4.5.3 A Word on Terminology

Where there is a will with a named executor, the court will issue a grant of probate (or “letters
probate”) confirming the executor’s authority under the will.
Ontario: The grant is called a “Certificate of Appointment of Estate Trustee with a Will”.
If there is no will, a grant of administration (or “letters of administration”) may be issued
authorizing one or more persons or a corporate trustee to administer the estate.
Ontario: The grant is called a “Certificate of Appointment of Estate Trustee without a Will”.
If there is a will, but there is no named executor able and willing to apply for the grant of
probate, the court will issue a grant of administration (or “letters of administration”) with will
annexed.
Ontario: The grant is called a “Certificate of Appointment of Estate Trustee with a Will.”
For purposes of this course a “grant of probate” refers to a grant issued by the court when there is
a will. A “grant of administration” refers to a grant where there is no will. A “grant of
administration with will annexed” refers to a grant where there is a will, but there is no executor
or there is no named executor able or willing to accept the appointment. References to a “grant”
refer to the applicable grant issued by the court. For additional types of grants, see also 4.5.7
Types of Grants.
4.5.4 Role of the Court

An application for a grant is normally made in the province where the deceased resided, or was
domiciled, at the time of death.29 Legislation may also specify the judicial district where the
application should be made – including the judicial district where the deceased resided. If the
29
In this course the testator is assumed to be resident and domiciled in the same jurisdiction. However, if the
deceased’s domicile is not the same as his or her residence, the law of the deceased’s domicile may change the laws
that apply for purposes of obtaining a grant and/or other applicable law. See Chapter 1 Introduction to the Law of
Estates and Trusts for a brief discussion of domicile.
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deceased was not resident in the province, the application will usually be made where the
deceased’s property is located.
4.5.4.1 Proving a Will in Common Form

An application for a grant is usually filed “over-the-counter” at the appropriate court
office. Over-the-counter applications do not require a court appearance before a judge.
Once the application is filed, court officials review the application and supporting
documents to ensure that all required information is included and that the will has been
executed in accordance with the jurisdiction’s requirements (see 4.5.8 Requirements to
Apply for a Grant of Probate in Common Form). The applicant (or the applicant’s estate
solicitor) is contacted if there are deficiencies that must be addressed. Amended or
additional documents may need to be filed.
Once the application is complete, the court will issue the grant. This non-contentious
process for obtaining a grant of probate is called “proving the will in common form”.
Although a will proved in common form is sufficient to protect an executor or third party
who relies on a grant of probate in common form, it can be challenged at a later date.
4.5.4.2 Proving a Will in Solemn Form

A will may also be proved in solemn form. A will proved in solemn form can only be
challenged at a later date in limited circumstances. An executor will want to consider
proving a will in solemn form if there is a dispute over the validity of the will, or there is
a question as to the validity of the will that the executor wants reviewed by the court.
If there is a subsequent dispute over the validity of a will proved in common form, an
application may be made to prove the will in solemn form.
When an executor obtains proof in solemn form, the will is protected from a later action
to revoke the grant of probate unless it is discovered that the will had been revoked or the
grant in solemn form was obtained by fraud. Due to the permanent nature of the grant
proved in solemn form, the process is more formal.
Proof in solemn form requires additional steps and costs. A formal court hearing before a
judge is required. It may also require more onerous notice requirements and witnesses
may need to be called to testify.
4.5.4.3 When There is No Executor

When the will does not name an executor or the executor(s) are not able or willing to act,
it is necessary to apply to court for a grant of administration with will annexed. The grant
gives the applicant(s) authority to administer the estate and the administrator is bound by
the terms of the will.
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4.5.5 Reasons to Obtain a Grant of Probate

It may be possible to administer an estate without a grant of probate. However, there may be
good reasons for obtaining a grant, even where it is not absolutely necessary. The more common
reasons are reviewed below.
4.5.5.1 To Deal with Interests in Land

Title to real property and any mortgages or other loans or guarantees secured with real
property or any other liens against real property are subject to the provincial or territorial
land registration system. It is usually not possible to transfer, encumber, or otherwise deal
with real property of a deceased person without a grant.
If real property is located outside the jurisdiction where the testator resided, it will likely
be necessary to obtain a grant in the other jurisdiction. Within Canada, this can be done
by resealing the grant of probate or, in appropriate circumstances, by obtaining an
original grant or an ancillary grant in the other jurisdiction. (See 4.5.7 Types of Grants.)
4.5.5.2 To Satisfy Third Party Requirements

Financial institutions, transfer agents for shares of public corporations, and other third
parties usually require a grant before transferring property (accounts, shares, etc.) into the
name of the executor. This is because a third party who relies on a grant is generally
protected from liability should it later be determined that assets were transferred to the
wrong person. This protection applies if a will was only proved in common form or if a
grant is subsequently revoked or otherwise set aside.
Example: Jordan is named executor in a will. He begins to act and instructs a bank to
transfer assets to himself on the strength of the will in his possession that has not been
probated. The bank did not require a grant of probate. Jordan then transfers the funds to
Eli, the residual beneficiary named in the will. The will is subsequently challenged and a
prior will, with a different executor and beneficiaries, is proved in solemn form. The new
executor will seek to recover the funds paid to Jordan and then Eli. If it is not possible to
recover the funds, the bank may be liable for the loss to the estate. However, if Jordan
had proved the will in common form, the bank would not be liable.
4.5.5.3 To Protect Executor from Potential Liability

Once a grant is obtained it cannot be disputed unless there is a successful application to
court to set aside the grant. Just as a grant of probate protects third parties who deal with
the executor, if a grant of probate has been issued (in common form or in solemn form),
the executor will be protected from claims of others who purport to have authority under
another will or testamentary document.
This protection does not protect the executor if there was fraud in obtaining the grant, or
if there is negligence in carrying out the executor’s duties.
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4.5.5.4 Ensure Certain Claims Expire

Spouses and dependants may have a claim for a greater share of the estate. A spouse may
also be able to make an election under family law legislation. These topics are covered in
CETA 2. The limitation period for making these claims runs from the date of the grant.
When the spouse has elections related to family property, the date for calculating the
limitation period depends on the relevant legislation. While some jurisdictions use the
date of death as a start date, others use the date of the grant.
4.5.5.5 To Conduct or Defend Litigation on Behalf of the Estate or the

Deceased
A grant is required in order for a personal representative to be able to pursue or defend
litigation on behalf of the estate or the deceased.
4.5.5.6 To Resolve Disputes Over the Validity of a Will

A will, and therefore an executor’s appointment, may be invalid for any number of
reasons, including (see Chapter 3 The Law of Wills for more details):
• a more recent will revokes the will;
• there is a codicil to the existing will that appoints a different executor;
• the testator lacked capacity;
• the testator was subject to undue influence; or
• there were errors in the execution of the will that cannot be rectified by the court.
In order to resolve issues related to the validity of a will, proof of the will in solemn form
will likely be required.
4.5.5.7 Corporate Trustees

Subject to multiple will planning where applicable, given the reasons for obtaining a
grant noted above, corporate trustees will usually require that a grant of probate be
obtained if it accepts the appointment.
4.5.6 When a Grant May Not be Required

In a limited number of situations, it may not be necessary to obtain a grant. Two examples are
reviewed below.
4.5.6.1 Small Estates

If the estate is under a certain dollar limit, it may be possible to deal with the estate assets
without a grant. A couple of examples are noted below.
• Banks or other financial institutions may release assets if the estate is under a
certain dollar limit if the personal representative provides the relevant information
about the estate assets and distribution, and agrees to sign a release and
indemnity.
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• If the deceased owned Canada Savings Bonds, probate may not be required
depending on the amount and whether or not the spouse is the sole beneficiary.30
In other situations, if the amount is over the institutional dollar limit, probate may be
waived if other protections can be arranged. For example, the institution may require
additional security, indemnities, and/or that funds or investments be kept at the financial
institution.
4.5.6.2 Multiple Wills

As noted in Chapter 3 (see 3.6.1 Wills Made by Two Individuals), it is possible in some
jurisdictions to use two wills – one that will be probated and is limited to certain assets;
and a second that will not be probated and deals with the transfer of assets such as shares
in a private company where the transfer agent may not require probate. This planning
strategy is used in limited circumstances and requires legal advice.
4.5.6.3 First Nations Estates Under the Indian Act

If the deceased was a First Nations member ordinarily resident on a reserve, a grant of
probate may not be required. Instead, a ministerial order may be issued by the Ministry of
Indian and Northern Affairs naming the executor.31
4.5.7 Types of Grants

As noted above, there are two types of grants – a grant of letters probate when there is a will and
a grant of letters of administration when there is no will or there is no executor to administer the
will. A number of other grants are issued to deal with specific situations. Each is briefly
described below.
4.5.7.1 Grant of Probate (or Letters Probate)

This is a grant issued by a court certifying that the will that is attached to the grant has been
duly proved and registered with the court. It verifies the executor’s authority.
Ontario: Certificate of Appointment of Estate Trustee with a Will
4.5.7.2 Grant of Administration (or Letters of Administration)

This is a grant issued when the deceased died intestate. This grant authorizes the person or
corporate trustee appointed, the “administrator”, to administer the estate.
Ontario: Certificate of Appointment of Estate Trustee without a Will
30
The transfer rules for deceased owners of Canada Savings Bonds (for owners outside Quebec, and owners in
Quebec) can be found on the Government of Canada’s Canada Savings Bonds website at:
http://www.csb.gc.ca/canada-savings-bonds-program/services-bond-owners/. See also Chapter 5 Estate Assets.
31
See s. 45(3) of the Indian Act, R.S.C. 185, c.I-5. For more information, see the government website at:
https://www.aadnc-aandc.gc.ca/eng/1100100032519/1100100032520.
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4.5.7.3 Grant of Administration with Will Annexed

This grant is issued when an executor has died, is unable to act, has renounced the
appointment, or, in rare cases such as with a homemade or holograph will, the testator
neglected to appoint an executor. Another person or corporate trustee may apply to be the
administrator of the estate.
Ontario: Certificate of Appointment of Estate Trustee with a Will
4.5.7.4 Grant of Administration de Bonis non Administratis

Where a grant of administration has already been issued and it is necessary to appoint a
new administrator, the original grant must be surrendered and a new application is made
for a grant of administration de bonis non administratis appointing a new administrator to
complete the administration.
Ontario: Certificate of Appointment of Succeeding Estate Trustee without a Will
4.5.7.5 Grant of Administration de Bonis non Administratis with Will

Annexed
If a grant of probate has been issued and the sole remaining executor dies, the court will
appoint another person to complete the administration of the estate in a grant of
administration de bonis non administratis with will annexed.
Ontario: Certificate of Appointment of Succeeding Estate Trustee with a Will
Where an executor dies and the administration is incomplete, and the will does not
provide for an alternate, if the executor’s executor takes out a grant of probate for the
executor’s estate, a new grant is not required. Instead, there is a transmission of the
executorship. This is sometimes referred to as the “chain of representation”.32
Example: Brody is executor of Emily’s will. Brody obtains a grant of probate but dies six
months after the administration begins. There is no alternate named in Emily’s will.
Brody’s son Ryan is executor of Brody’s will and Ryan obtains a grant of probate to
administer Brody’s estate. Ryan becomes the executor of Emily’s estate.
4.5.7.6 Grant of Administration Pendente Lite

This is a grant issued by the court appointing an administrator to preserve the assets of
the estate when there is a legal action to resolve a dispute over the validity of the will.
Pendente lite means “during litigation”. The administrator may be an independent third
party.
Ontario: Certificate of Appointment of Estate Trustee during Litigation
32
See Feeney at para. 7.52 for further discussion.
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4.5.7.7 Ancillary Grant of Probate

An ancillary grant of probate is issued where the original grant of probate has been issued
by a foreign court and the deceased owned property in the province or territory. This
grant is required in order to administer the assets located in the province or territory. If a
deceased dies in Canada and leaves assets in another jurisdiction, an ancillary grant may
also be required in the other jurisdiction, or other local rules may need to be satisfied to
establish the executor’s authority to deal with those assets.
Ontario: Certificate of Ancillary Appointment of Estate Trustee with a Will
4.5.7.8 Resealing a Grant of Probate

There is an exception for obtaining an ancillary grant for jurisdictions that meet certain
requirements. Where the exception applies, it may be possible to reseal the grant which is
a less stringent process. Resealing is generally possible in two situations – between
Canadian jurisdictions, and between Canada and certain other countries, usually with a
connection to the British Commonwealth.
Where a grant of probate is issued in one province or territory in Canada, and the
deceased owns property in another Canadian jurisdiction, the original grant may be
“resealed” in that other province or territory. Resealing is required to deal with real
property interests. It is usually not necessary to reseal a grant of probate to transfer
personal property in another Canadian jurisdiction.
When dealing with real property in Quebec, the grant from a common law jurisdiction
may be sufficient proof of authority of the executor to transfer title of the property or may
be deposited with a notary who issues a certified copy of the grant of probate. A notary
will assist with the sale or transfer of the property.
If the law governing the succession doesn’t give authority to the executor to act in
Quebec, an administrator or liquidator may be appointed under the law of Quebec (art.
3101 CCQ) either by a majority of the heirs (art. 785 CCQ) or, failing that, by the court
(art. 788 CCQ).
A notarial will from Quebec can usually be resealed in common law provinces. There is
no resealing process in Quebec.
As with an ancillary grant, when a grant is resealed, it has the same force and effect as if
it had been originally granted in that jurisdiction.
Grants may also be resealed in certain other jurisdictions around the world. Generally,
resealing is possible in a British court (United Kingdom or other British possession). It
may also be possible in other British Commonwealth jurisdictions. Personal
representatives from these jurisdictions may also reseal a grant of probate from these
jurisdictions in Canadian jurisdictions in order to deal with property located in Canada.
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Resealing permits the transfer of property outside the jurisdiction where the grant was
originally made. Resealing in this case may be limited to real property in the jurisdiction,
but it may be required for personal property such as financial assets as well.
Each jurisdiction’s requirements and rules must be reviewed to determine what will be
required. For example, in British Columbia, the law now recognizes a grant from the
United States.33
4.5.7.9 Dealing with Assets in Another Jurisdiction where There Is No

Will
If there is no will, the administrator will need to comply with the requirements of the
other jurisdiction in order to establish authority to deal with the assets.
In Quebec, letters of verification can be obtained to prove the liquidator’s authority to
deal with assets in another province or country. See 4.7.1.2 Quebec Only: Recognition of
Liquidator Outside Quebec.
4.5.8 Requirements to Apply for a Grant of Probate in Common Form

While the details of the rules vary from province to province, the application for probate in the
common law provinces is very similar.34 The estate solicitor will attend to preparing the
necessary documents, sending notices and filing the required documents with the court. If the
executor is a corporate trustee, or has retained a corporate trustee as agent for the executor, the
corporate trustee will usually attend to sending the required notices and preparing the inventory
of assets.
The following documents will usually be required for the application:
• the formal application requesting the court to issue the grant,
• the original signed will (or notarial copy of a notarial will from Quebec),
• proof that notices of the application, and prescribed information, have been sent to all
beneficiaries and other parties as required,
• an affidavit of execution of the will (where required),
• a list of assets, and the fair market value, at date of death,
• a listing of liabilities at date of death,
• a listing of beneficiaries and their entitlement,
• the renunciation of any executor who is not a party to the application,
• proof of bond or security if the executor is resident outside Canada, and/or
• payment of the relevant probate fees or taxes.
British Columbia: A Certificate of Wills Notice Search is also required.
33
See s. 138(1) of the Wills, Estates and Succession Act and s. 3(b) of the Wills, Estate and Succession Act
Regulation, B.C. Reg. 148/2013.
34
Probate of wills in Quebec is rare. These requirements do not address Quebec requirements where probate may be
required.
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4.5.8.1 Notice Requirements

Each province has rules that set out who must be notified of an application for a grant.
Generally, the rules are similar and require notice be sent to:
• all beneficiaries whether specifically named or a class of beneficiaries,
• those who would be beneficiaries if there was an intestacy,
• spouses and dependants entitled to apply to vary the will,
• a surviving spouse who has been separated from the deceased for a specified
period,
• if the beneficiary is a minor, to the minor’s parent(s) or guardian(s) as well as the
province’s Public Guardian and Trustee (Ontario: the Children’s Lawyer), and/or
• if the beneficiary is or may be an incapable adult, the adult’s legal representative
if there is one (e.g. property guardian or, in some cases, an attorney under an
enduring power of attorney) as well as the province’s Public Guardian and
Trustee or Public Trustee.
Legislation sets out the information that must be included in the notice. This will often
include a copy of the will. In some jurisdictions, if the beneficiary is only entitled to a
legacy, the information required may be limited to an excerpt from the will setting out the
entitlement.
The notice will also set out the first date after which an application for the grant can be
made. This allows the recipient to make inquiries and obtain legal advice if there are
questions about the recipient’s rights or there are questions about the validity of the will.
4.5.8.2 Applications for a Grant of Administration

Although anyone can apply for a grant of administration, legislation usually sets out a
hierarchy based on family relationships usually beginning with the spouse, then adult
children, siblings, etc. The first person on the list who is willing to act will usually be
appointed. Consent, or a renunciation of the right to apply, from those higher on the list
may be required if someone else is to be appointed, including a corporate trustee.
If an application for a grant of administration is required, much of the same information
is required as for a grant of probate. Requirements include:
• an affidavit stating that a will could not be located, with applicable evidence of
efforts made, and explaining the applicant’s relationship to the deceased;
• where the named executor has renounced, a renunciation signed by the executor,
or evidence as to why a named executor is not able to accept the appointment;
• renunciation by those with priority over, or equal priority to, the person applying
for the grant;
• confirmation that notices have been delivered to all intestate beneficiaries entitled
to share in the estate (see Chapter 7 Estate Beneficiaries) and others as required
by the applicable legislation;
• asset, liability, and beneficiary information as above;
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• proof of bond or other security if applicable; and

• payment of the relevant probate fees or taxes.
4.5.8.3 Security for the Administration

Corporate trustees are not required to post security when administering an estate with or
without a will. Executors named in a will also do not have to post security. If the executor
lives outside of Canada, security may be required.
When there is no will, security is required for all personal administrators. The court has
discretion to waive security where it is satisfied that the interests of all beneficiaries and
creditors will be protected. Security may be waived where:
• there are no debts,
• the value of the estate is small,
• the applicant is the beneficiary, or
• all parties or their representatives who are potentially beneficially interested in the
estate consent.
Security may be in the form of a bond, or other arrangements may be possible depending
on the assets. If the beneficiary(ies) include minors or an incapable adult, security will
usually be required.
4.5.8.4 The “Estate Summary”

As noted in the list above, the application to court requires information about asset
valuation, liabilities, and beneficiaries. The asset values are also used to determine the
amount of the probate fees or taxes payable. The details required vary by jurisdiction.
Many also require a listing of the liabilities at death, including the amount due and the
name of the creditor. Finally some also require that all beneficiaries, along with their
entitlement, and in some cases their addresses, be listed.
Where the full details about the assets, liabilities, and beneficiaries are not required, this
information is still required to assist with other aspects of the administration. All
corporate trustees and many law firms will prepare a document that summarizes this
information. Names for this document include: estate summary, summary of assets and
liability, asset and liability statement, estate and trust record, and inventory of assets. For
purposes of this course “estate summary” is used. See the STEP website for students
under “Student Resources” for a sample of an estate summary.
An estate summary is a key document in the administration. It is the source of
information for preparation of tax returns, it can be the beginning of the accounting to the
residual beneficiaries, and it can be used to monitor the progress of the administration by
checking that all assets are collected and liabilities paid and that legacies to beneficiaries
are delivered or paid.
Caution: When preparing an estate summary, it is important to ensure that personal
information about a beneficiary is not inadvertently disclosed. For example, a phone
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number may be included on the office copy, or a SIN number may be included to assist
the estate’s tax preparer. This information cannot be shared more broadly. Therefore it
may be appropriate to have two versions – an internal office version and a
client/beneficiary and court version.
4.5.8.5 Probate Fees and Taxes

Some jurisdictions charge a flat fee for reviewing the grant application and issuing the
grant. Most, however, have a minimum fee and then charge a percentage on the value of
the assets. These fees are referred to as “probate fees” or “probate taxes”. Where the
executor does not have access to funds, the court may permit an application to proceed
without payment of the probate fees, on the strength of an undertaking or promise to pay
the required amount when funds are available. Financial institutions may release the
funds to pay the fees.
See Figure 4.2 Fixed Rate Probate Fees by Jurisdiction, and Figure 4.3: Sliding Scale Probate Fees
and Taxes by Jurisdiction, at the end of this Chapter for a summary of the fees payable in each
jurisdiction.
4.5.8.6 Ontario Only: Estate Information Return and Probate Tax

On January 1, 2015, Ontario introduced the Estate Information Return that must be filed
with the Ministry of Finance within ninety calendar days after the Certificate of
Appointment of Estate Trustee is issued. The court no longer collects the probate taxes.
The form is used to calculate the Estate Administration Tax, formerly known as probate
fees. Although the rates did not change, there are more detailed rules on the information
required, how to report new assets or updated values, and refunds.
The return is only required for applications after January 1, 2015. At the time of filing an
application for a certificate, the personal representative will pay the tax on the estimated
value and provide an undertaking to file, within six months, a sworn/affirmed statement
of the total value of the estate and pay the balance owing. If necessary an order
authorizing deferral of payment to a later date can be applied for. If assets are discovered
within four years of the issuance of the certificate, an amended return must be filed
within thirty days of learning of the new asset.
Failure to file a return or to make false or misleading statements is an offence. Penalties
can include a fine of at least $1000 and up to twice the tax payable, or imprisonment, or
both.35
There are no provisions in the Estate Administration Tax Act or regulation that provide
for a clearance certificate. However, the ministry may audit the personal representative.
There is a process for objections and appeals of any Notice of Assessment issued by the
ministry as a result of the audit. There are also requirements for records retention,
currently a minimum of four years.36
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4.6 ROLE OF ESTATE LEGAL PROFESSIONAL
4.6.1 Services Provided by Legal Professionals

The legal professional hired by a personal representative provides advice on the executor’s
duties, the interpretation of the will, and any legal matter that arises during the administration of
the estate.
Common Law Only: The legal professional is usually a solicitor licenced to practice in the
jurisdiction.
35
See the Ontario Ministry of Finance Guide “Estate Information Return” under the Estate Administration Tax Act,
1998. The guide and form set out the details and guidance for completing the return. It is available online at
http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf/GetFileAttach/9955E~2/$File/9955E_Guide.pdf
36
See also FAQs online at http://www.fin.gov.on.ca/en/tax/eat/faq.html#Q32. However, see the Ministry of Finance
website for records retention and destruction rules at http://www.fin.gov.on.ca/en/bulletins/general/retention.html.
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Quebec Only: The legal professional may be a lawyer or a notary.

The legal professional normally carries out the following functions:
• prepares the application for the grant of probate (if required),
• prepares notarial (certified true) copies of documents, such as letters probate, as required,
• sends required notices,
• advertises for creditors, where required, and
• performs any legal work required to transfer the real estate of the deceased.
Where the executor does not wish to carry out all his or her duties personally, either due to
limited availability, lack of expertise, or for any other reason, a legal professional may be
retained to carry out or assist with administrative duties on behalf of the executor. In addition to
the above, services might include:
• preparing the inventory of assets,
• securing the property and arranging for insurance as required,
• realization of assets (sale of investments, property, and other assets),
• preparation of, or arranging for the preparation of, income tax returns,
• application for the tax clearance certificate,
• distribution of property to beneficiaries and obtaining releases,
• preparation of accounts, or
• any other administrative duty.
Where the legal professional is hired to assist the executor, in many cases he or she will have
staff with specialized training in estate administration. These staff members, under the
supervision of the legal professional, prepare all the required documents, correspondence, and
paperwork involved in the administration of the estate, including accounting records.
If the executor is a corporate trustee, it will usually carry out all of the foregoing administration
tasks as well as attending to the advertising for creditors. This can significantly cut down on the
amount of work required from the legal professional. Many corporate trustees also offer agent-
for-executor services where the corporate trustee can also assist an executor with some or all of
the administrative tasks (see Chapter 2 Trustees, Personal Representatives, and Substitute
Decision-makers).
4.6.2 Overseeing the Work of Legal Professionals and other Agents

When an executor delegates administrative tasks to others, he or she must still make all decisions
and must oversee the work done by the legal professional, corporate trustee, or any other agents
hired to assist, including tax accountants and other professionals or service providers.
Quebec Only: The charge of liquidator is a personal charge. Consequently, in hiring a
professional to carry out specific tasks, or act as agent for the liquidators, it is important to
consider article 1337 CCQ, which prohibits the general delegation of the liquidator’s
administration, and the delegation of discretionary powers to third parties. The terms of the will
may also have an impact on a liquidator’s authority to delegate.
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4.6.3 Fees Paid to Legal Professionals for Services
4.6.3.1 Common Law Only: Fees for Legal Services

The fees charged by the solicitor to perform administrative duties of the executor will be
deducted from or reduce the executor’s compensation. The solicitor should keep a
separate record of the time and charges related to executor’s duties for this purpose.
Separate records should also be retained where the solicitor is the executor in order to be
able to distinguish fees for legal services and executor fees.
4.6.3.2 Quebec Only: Fees for Legal Services

The liquidator is entitled to reimbursement of estate administration expenses (art. 789
CCQ). Typically, these will include professional fees incurred to produce certain
documents or declarations requiring publication, or which have other formal validity
requirements, and accounting fees.
Where the liquidator has hired professionals, the liquidator may also be entitled to
remuneration if he or she is not an heir (art. 789 CCQ, para. 2) but the professional’s fees
will be taken into account when the liquidator’s final fees are being determined.
4.7 ASSETS IN ANOTHER JURISDICTION
4.7.1 Personal Property and Real Property
4.7.1.1 Common Law Only: When to Reseal or Obtain Ancillary Grant

When dealing with the common law provinces in Canada, a grant of probate from one
province or territory will usually be accepted in another jurisdiction to deal with personal
property. However, if the assets are interests in land (real property), a grant from the local
jurisdiction is required. Within Canada, it is possible to reseal the original grant.
When dealing with personal or real property assets outside of Canada, it will usually be
necessary to reseal the grant where permitted, or to obtain an ancillary grant.
A court certified copy of the grant of probate issued in another province may be accepted
in Quebec to prove the authority of the estate administrator to deal with real property
(“immovable” property in the civil law) located in Quebec. See 4.5.7.9 Dealing with
Assets in Another Jurisdiction where There Is No Will for the process when using a
Notary. It is not possible in Quebec to obtain “resealing” or “ancillary” probate.
4.7.1.2 Quebec Only: Recognition of Liquidator Outside Quebec

To deal with assets outside of Quebec, the liquidator or heir(s) can obtain letters of
verification from the Superior Court of Quebec to prove their quality as liquidator or heir
(art. 615 CCQ). The letters of verification will attest to the fact that the succession has
opened and that the will has been proved and is the last will of the deceased. In the case
of an intestacy, the letters of verification will certify that the deceased’s property
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devolves to designated persons, and will indicate their respective shares (arts. 892-896
CPP).
Notaries in Quebec have concurrent jurisdiction with the court to issue letters of
verification (art. 312 CPP).
4.8 OTHER ESTATE MATTERS TO BE ADDRESSED

There are a number of non-financial matters that a personal representative needs to attend to in
order to wind up a deceased person’s affairs. These include:
• returning passports and social insurance number cards,
• cancelling provincial health cards and driver’s licenses,
• closing down online accounts,
• terminating free subscriptions, and
• terminating memberships in clubs and associations.
Each estate will require a careful review of the deceased’s personal papers, mail, and online
activity. Corporate trustees and law firms will have checklists and/or guidance for these matters.
4.9 PRIVACY
Corporate trustees, professional firms, and service providers are governed by federal or
provincial privacy legislation. The legislation governs the collection and sharing of information.
Generally, clients must be told why information is being collected and how or when it may be
shared.
Companies and firms will have a privacy officer or person responsible for ensuring staff are
trained, that appropriate policies and procedures are in place, and that a process for reporting
privacy breaches is in place.
When administering an estate it is important to be mindful of the types of situations where
personal information may be required in order to carry out the administration. This information
must be used carefully. Unless required to carry out the responsibilities, as disclosed to the client,
the client’s consent is required before sharing the information further.
There are a number of examples of situations that may arise where personal information is
required but could inadvertently be shared. The following is a list of the more common
scenarios. Many of these will apply to the administration of testamentary or inter vivos trusts.
• Phone numbers for beneficiaries may be included on an estate summary to assist staff
members working on the administration. This should not be included on a public version
of the estate summary.
• SIN numbers are required for tax purposes for certain beneficiaries. This information
should also not be included on a public version of the estate summary.
• A beneficiary may provide banking information in order to facilitate a direct deposit to
his or her account. Account information should not be included on a public version of an
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estate summary or in accounting records/accounting systems that are generated for the
formal accounting to beneficiaries or other parties who do not require this information.
• Beneficiary identification may be required to prove the identity of the beneficiary, his or
her relationship to the deceased, age, or membership in a class of beneficiaries.
Documents may include passports, driver’s licences, birth certificates, and other official
documents. Identification may also be required in certain situations to satisfy anti-money
laundering requirements.
• Settlors and co-executors or co-trustees may be required to provide identification for tax
purposes or to satisfy anti-money laundering requirements.
• Staff working with corporate trustees must be mindful of what information can and
cannot be shared with related companies.
When an estate solicitor or corporate trustee is acting on behalf of the executor and requesting
information about the estate, it will be necessary for the executor to provide consent to the third
party to share the information. This may occur in a specific consent, or might be addressed in a
more general consent.
4.10 ANTI-MONEY LAUNDERING LEGISLATION

Anti-money laundering (AML) legislation requires corporate trustees, law firms, and other
professionals to identify clients in certain situations. Suspicious transactions may have to be
reported. Each company or firm will have internal rules and procedures that set out when
identification is required, the information that must be collected, and how to record it.
The rules that apply to a corporate trustee acting in its personal capacity as a fiduciary and
dealing with a settlor, testator, co-fiduciary, and beneficiaries will differ from the rules that apply
to a lawyer or an accountant. The rules also differ for estates, testamentary trusts, inter vivos
trusts, and substitute decision-makers. Special rules apply when dealing with entities such as
private companies, public companies, and partnerships. Students are directed to their internal
policies and procedures.
See “Review Questions” for this chapter at the end of the course materials to review your
learning.
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Figure 4.2: Fixed Rate Probate Fees by Jurisdiction

Jurisdiction Estate Value Range Fee
Alberta, Northwest Territories, and $ 10,000 and under $ 25
Nunavut
$ 10,000 – $25,000 $ 100
$ 25,000 – $125,000 $ 200
$125,000 – $250,000 $ 300
Over $250,000 $ 400
Yukon $25,000 or under Nil
Over $25,000 $140
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Figure 4.3: Sliding Scale Probate Fees and Taxes by Jurisdiction

Jurisdiction Estate Value Fee Rate on the Balance Example:
Range On
$1,000,000
British Columbia Under $25,000 Nil n/a
Probate Fee $25,000 - $50,000 $208 Plus $6/$1000 (.6%)
Over $50,000 $358 Plus $14/$1000 (1.4%) $13,658
Saskatchewan n/a n/a $7/$1000 (.7%) $7,000
Probate Fee
Manitoba Probate Under $10,000 $70 n/a
Fee Over $10,000 $70 Plus $7/$1000 (.7%) $7,000
Ontario Estate Under $1000 Nil n/a
Administration Under $50,000 Nil $5/$1000 (.5)
Tax
Over $50,000 $250 Plus $15/$1000 (1.5%) $14,500
New Brunswick Under $5,000 $25 n/a
Probate Tax $5,000 - $10,000 $50 n/a
$10,000 - $15,000 $75 n/a
$15,000 - $20,000 $100 n/a
Over $20,000 Nil $5/$1000 (.5%) $5,000
Newfoundland Under $1000 $60 n/a
and Labrador Over $1000 $60 Plus $5/$1000 (.5%) $5,000
Probate Fees
Nova Scotia Under $10,000 $83.10 n/a
Probate Tax $10,000 - $25,000 $208.95 n/a
$25,000 - $50,000 $347.70 n/a
$50,000 - $100,000 $973.45 n/a
Over $100,000 $973.45 Plus $16.45/$1000 $15,778.45
(1.645%)
Prince Edward Under $10,000 $50 n/a
Island Probate $10,000 - $25,000 $100 n/a
Fees
$25,000 - $50,000 $200 n/a
$50,000 - $100,000 $400 n/a
Over $100,000 $400 Plus $4/$1000 (.4%) $4,000
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Figure 4.4: Alberta Only: Alberta Rules on the Role of the Personal Representative
The follow text sets out the provisions governing the role of the personal representative under
Alberta’s Estate Administration Act, S.A. 2014, c., E-12.5.37
Part 1
The Role of a Personal Representative
General duties of a personal representative

5(1) A personal representative must
(a) perform the role of personal representative
(i) honestly and in good faith,
(ii) in accordance with the testator’s intentions and with the will, if a valid will exists, and
(iii) with the care, diligence and skill that a person of ordinary prudence would exercise in
comparable circumstances where a fiduciary relationship exists,
and
(b) distribute the estate as soon as practicable.
(2) A personal representative is a trustee within the meaning of the Trustee Act.
(3) Subject to the will, if any, and this Act or any other enactment, if because of a personal representative’s
profession, occupation or business, the personal representative possesses or ought to possess a particular degree of
skill that is relevant to the performance of the role of personal representative and that is greater than that which a
person of ordinary prudence would be expected to exercise in dealing with the property of another person, the
personal representative must, when acting or retained in his or her professional capacity, exercise that greater degree
of skill.
Disposition of human remains

6 The Funeral Services Act and the Cemeteries Act and the regulations under those Acts apply to the determination
of who has the authority to control and give instructions for the disposition of human remains and the making of
funeral arrangements.
Core tasks
7(1) The core tasks of a personal representative when administering an estate are
(a) to identify the estate assets and liabilities,
(b) to administer and manage the estate,
(c) to satisfy the debts and obligations of the estate, and
(d) to distribute and account for the administration of the estate.
(2) The core tasks referred to in subsection (1) may include, but are not limited to, the activities set out in the
Schedule. [See below.]
37
Accessed from Canlii Sept 26, 2016 @ https://releve.canlii.org/en/ab/laws/stat/sa-2014-c-e-12.5/latest/sa-2014-c-
e-12.5.html
4-54
Failure to provide notice or the non-performance of duty or core task

8 If, on application, the Court is satisfied that a personal representative has refused or failed to provide the notice
required under Part 2 or to perform a duty or core task for which the personal representative is responsible, the
Court may
(a) order the personal representative to provide the notice or to perform the duty or core task;
(b) impose conditions on the personal representative;
(c) remove the personal representative;
(d) revoke a grant;
(e) make any other order that the Court considers appropriate.
Schedule
Core Tasks
(Section 7(2))
This Schedule provides examples of activities that may be included in the core tasks referred to in section 7(1).
1 Identifying the estate assets and liabilities may include, but is not limited to,
(a) arranging with a bank, trust company or other financial institution for a list of the contents of a safety
deposit box,
(b) determining the full nature and value of property and debts of the deceased person as on the date of
death and compiling a list, including the value of all land and buildings, a summary of outstanding
mortgages, leases and other encumbrances, and online accounts, and
(c) applying for any pensions, annuities, death benefits, life insurance or other benefits payable to the
estate.
2 Administering and managing the estate may include, but is not limited to,
(a) creating and maintaining records,
(b) regularly communicating with beneficiaries concerning the administration and management of the
estate,
(c) examining existing insurance policies, advising insurance companies of the death and placing additional
insurance, if necessary,
(d) protecting or securing the safety of the estate property,
(e) providing for the protection and supervision of vacant land and buildings,
(f) arranging for the proper management of the estate property, including continuing business operations,
taking control of property and selling property,
(g) retaining a lawyer to advise about the administration of the estate,
(h) applying for a grant in accordance with this Act or applying to bring any matter or question before the
Court if appropriate or necessary for the administration of the estate,
(i) commencing or defending a claim on behalf of the estate,
(j) preparing and providing financial statements, and
(k) performing any other duties required by law.
3 Satisfying debts and obligations of the estate may include, but is not limited to,
4-55
(a) determining the income tax or other tax liability of the deceased person and of the estate, filing the
necessary returns, paying any tax owing and obtaining income tax or other tax certificates before
distributing the estate property,
(b) arranging for the payment of debts and expenses owed by the deceased person and the estate,
(c) determining whether to advertise for claimants, checking all claims and making payments as funds
become available, and
(d) taking the steps necessary to finalize the amount payable if the legitimacy or amount of a debt is in
issue.
4 Distributing and accounting for the administration of the estate may include, but is not limited to,
(a) determining the names and addresses of those beneficially entitled to the estate property and notifying
them of their interests,
(b) informing any joint tenancy beneficiaries of the death of the deceased person,
(c) informing any designated beneficiaries of their interests under life insurance or other property passing
outside the will,
(d) administering any continuing testamentary trusts or trusts for minors,
(e) preparing the personal representative’s financial statements, a proposed compensation schedule and a
proposed final distribution schedule, and
(f) distributing the estate property in accordance with the will or intestate succession provisions.
4-56

CETA-1 (3rd Ed) - Chap 04 - Initial Stages

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Chapter 4

Initial Stages of an Estate Administration

Initial Stages of an Estate Administration

See also the commentary below Reminder.

REMINDER: Terminology varies significantly between provinces, and even more

4.1 INITIAL STEPS

4.1.1 Locate the Will

4.1.1.1 Common Law Only: Locating the Will

4.1.1.2 Quebec Only: Locating the Will

4.1.1.3 Will Registries

4.1.2 Funeral Arrangements

4.1.2.1 Organ Donation

4.1.2.2 Authority to Deal with the Remains

4.1.2.3 Deceased’s Wishes

4.1.2.4 The Costs of the Funeral and Disposition of Remains

4.1.2.5 Bereavement Airfare

4.1.2.6 The Obituary Announcement

4.1.2.7 Veterans’ Allowance

4.1.3 Communicate with Co-executor and Beneficiaries

4.1.3.1 Decision-making with Multiple Executors

4.2 OVERVIEW OF THE STEPS IN AN ADMINISTRATION

4.2.1 Milestones and Timelines

Steps in the Administration a Estimated Timelines b

4.2.2 Immediate Financial Needs

4.2.3 Interpretation and Issue Identification

4.2.4 Identify and Value Assets

4.2.5 Safeguard Assets and Identify Liabilities

4.2.5.2 Debts and Liabilities

4.2.6 Identify and Locate Beneficiaries

If there is a trust, the beneficiaries are usually referred to as:

4.2.7 Apply for Grant of Probate or Administration/Confirm Authority to Act

4.2.7.1 Common Law Only: Court Grants

4.2.7.2 Quebec Only: Notarial Wills and Wills Requiring Probate

4.2.8 Collect Assets, Pay Debts, and Distribute

4.2.9 Account to Beneficiaries

4.2.9.1 Common Law Only: Accounting Requirements

4.2.9.2 Quebec Only: The Inventory

4.2.10 Distribute and Wind Up Administration

4.2.11 The “Executor Year”

4.2.11.1 Common Law Only: The “Executor’s Year”

4.2.11.3 Quebec Only: When Beneficiaries Are Entitled to Payment

4.3 ORDER AND CONTENTS OF A WILL INCLUDING COMMON CLAUSES

4.3.1 Identification of Testator and Testamentary Intent

4.3.1.1 Quebec Only: Domicile and Matrimonial Status and Regime

4.3.1.2 Funeral Arrangements

4.3.4 Beneficiary Designations

4.3.4.1 Common Law Only: Beneficiary Designations in a Will

4.3.4.2 Quebec Only: Limits on Beneficiary Designations in a Will

4.3.5 Appointment of Executor(s) and Trustees and Alternates

4.3.6 Transferring Property to the Executors

4.3.6.1 Common Law Only: Vesting Property in the Executors

4.3.6.2 Quebec Only: Authority of the Liquidator (seisin)

4.3.7 Expenses and Sale of Assets – Disposition of the Estate

4.3.7.1 Payment of Funeral Expenses, Debts, Taxes, and Other

4.3.7.2 Common Law Only: Conversion and Retention of Assets

4.3.7.3 Quebec Only: Realizing Assets

4.3.7.4 Specific Gifts (Legacies)

4.3.7.5 General Disposition of Personal and Household Effects

4.3.7.6 Trusts for Specific Assets or Purposes

4.3.7.7 Residue Clause

4.3.7.8 Quebec Only: Residue Clauses – Two Types of Legacies

movable property, private property, community property, or acquests (e.g. all

4.3.7.9 Assets Received Before Death

4.3.7.10 Survivorship Clause