( Disponible en anglais seulement )
On June 1, 2015, Alberta’s new Estate Administration Act (the “Act”) and some consequential amendments to the Surrogate Rules came into force. The Act takes a new approach in clearly setting out the duties, core tasks and notice requirements of the Personal Representative. Where probate of the Will is not required to administer the estate, the Personal Representative is now required to provide notice to relevant persons. A very general provision empowers the Personal Representative to carry out the required tasks. Where the Personal Representative fails to give notice, perform a duty or carry out a core task, the remedy of a court application is provided. The Act also includes various new provisions which provide clarification or simplify procedures.
The stated duties of a Personal Representative reference the fiduciary obligations of the role and oblige the Personal Representative to act:
- honestly and in good faith;
- in accordance with the testator’s intentions and the Will, if a valid Will exists; and
- with the care, diligence and skill that a person of ordinary prudence would exercise in comparable circumstances where a fiduciary relationship exists.
Subject to the Will (if there is one), the Act, or any other enactment, where a Personal Representative is of a certain profession, occupation or business and possesses, or ought to possess, a particular degree of skill relevant to the role which is higher than the normal standard, the Personal Representative is required to exercise that higher degree of skill when acting or retained in such professional capacity.
A Personal Representative is also obliged to distribute the estate as soon as practicable.
The core tasks of the Personal Representative are:
- to identify the estate assets and liabilities;
- to administer and manage the estate;
- to satisfy the debts and obligations of the estate; and
- to distribute and account for the administration of the estate.
These core tasks are elaborated upon in a Schedule to the Act. With a modern twist, the more detailed list includes a reference to “online accounts” in determining the full nature and value of the deceased’s property. Important specifics in administering and managing the estate include “creating and maintaining records” and “regularly communicating with beneficiaries”.
Rather than the piece-meal approach to certain powers and limitations upon them contained in the former Administration of Estates Act and various provisions of the Devolution of Real Property Act, a general provision is substituted in the new Act. Subject to the Will if there is one, the Act or any other enactment, the Personal Representative has the authority to:
- take possession and control of the property;
- do anything in relation to the property that the deceased person could do if he or she were alive and of full legal capacity; and
- do all things concerning the property that are necessary to give effect to any authority or powers vested in the Personal Representative.
Where a minor is interested in an estate and registration of a transfer, mortgage or other instrument with respect to real property is sought however, the Land Titles Act still requires the consent of the Public Trustee.
Where a Personal Representative refuses or fails to perform a duty or core task or to give the requisite notice, a court application can be made. The remedies include requiring the Personal Representative to provide the notice or perform the duty or core task, imposing conditions on the Personal Representative, removing the Personal Representative, revoking the grant or making any other order the Court considers appropriate.
In addition to continuing to cover various matters which were covered under the previous Act, the new legislation also covers some areas which were formerly included in the Surrogate Rules, such as the priority among applicants for a grant. There are also some less onerous requirements under the new Act for resealing a foreign grant or obtaining an ancillary grant.
The new Act provides a codification of the ordering rules for “marshalling” and determining which beneficiaries will have their gifts reduced or eliminated when an estate is insufficient to pay all funeral and estate expenses and unsecured debts and liabilities. The Act also clarifies who has the right to dispose of the deceased’s remains.
If you would like further information regarding this legislation, please feel free to contact the author.