When a person passes away, someone needs to take control of their estate, pay off any debts they may have, and deal with their property. If the deceased had a will, the will must be “probated” by the executor appointed in the will. Probating a will means that the court recognizes the will as being valid. Applying for probate involves submitting the proper forms to the court registry and then taking control of the deceased’s estate.
When an individual dies without a will, that person’s estate is divided pursuant to the Wills, Estate and Succession Act (WESA). Someone, usually a family member, must apply to court for “letters of administration” to have the legal authority to administer the estate and divide the estate among family members.
Steps in Applying for Probate or Letters of Administration
Probate law involves a complex process. Executors must file multiple documents with the court, including:
- An affidavit of the applicant
- The Certificate of Wills Search
- Submission for Estate Grant
- Affidavits of assets and liabilities
- The original will
Those seeking letters of administration must also file specific documents at court. Failing to fill out documents correctly or in a timely manner may cause significant delays in the administration of the deceased’s estate and the eventual payout to the beneficiaries. If you are a will executor, it is often better to hire a legal professional to help you through these steps. Your legal fees will be paid back from the estate.
Duties of Executors
Executors have the difficult task of carrying out the last wishes of the deceased. The person designated as executor has to carry out the will-maker's instructions. The executor has a large amount of duties when it comes to administering the estate, which includes paying the estate’s debts, filing final tax returns, and distributing the estate to the beneficiaries.
An executor must complete her or his duty to “pass the accounts” within two years of the grant of probate. Passing of accounts means that the executor must provide the court with a full account of the assets of the estate. If the executor fails to prepare accounts or prepares improper accounts, the executor can be removed or face legal action.
An executor's job is not an easy one. Taking on the duty of administering an estate can be overwhelming, given the many tasks an executor is obligated to perform. An executor who fails to properly carry out fiduciary duties can expose him or herself to liability if they:
- Fail to ensure all taxes are paid before distributing the estate to the beneficiaries.
- Fail to ensure all creditors have been paid off, or:
- Fail to resolve claims before distributing the estate to the beneficiaries.
- Fail to make reasonable efforts to notify or discover other possible creditors or beneficiaries.
Engaging a wills and estate lawyer will ensure that you will carry out your duties accurately and avoid any unnecessary liabilities. It is also important to note that lawyer's fees are paid from the estate's assets and not by the executor.
Assisting With Estate Law For Over Thirty Years
The wills and estate lawyers at Vancouver-based Westside Family Law have guided clients through and estate administration matters for over three decades. We can provide you with knowledgeable, efficient representation. Fill out the contact form below to set up a consultation with a lawyer, or call us at 604-734-7911 to get started.