When a person passes away, the first question their provincial court is likely to have is: Did they have a legal will? When a person passes away with a will and an estate plan, their will becomes a guide for their executor on how to take care of their funeral arrangements, financial affairs, and the distribution of their assets and belongings.
So when there is no will and the person passes away intestate, they have no executor and no documentation of their final wishes. Which is why their estate will need an estate administrator.
In this article, we’ll explore the process of becoming an estate administrator and the implications of obtaining a letter of administration when there is no will. We’ll also go through the steps involved in estate administration under intestate conditions, and the challenges that come with administering an estate without a will to guide you.
Introduction to Intestate Estates
When a person is named in a will to manage and distribute an estate, they are called an executor. As per the deceased’s wishes, they can assume the role and become responsible for the testator’s estate immediately or soon after the testator of the will passes away.
But when the owner of an estate passes away intestate, not just anyone can step up to take responsibility for their estate.
Someone relevant to the estate, such as an heir, beneficiary, or someone close to the deceased, will have to apply to the court to be appointed as the estate administrator of the deceased person's estate. If no one steps up to take on the responsibility of this position, the court will appoint a public trustee instead.
But the person who takes on the role of the estate administrator cannot start immediately. They must wait until the court gives permission through a letter of administration, which can take a while due to the nature of the legal system.
What is a letter of administration in Canada?
A letter of administration is an official document issued by a provincial court that grants a person permission to access estate assets, finances, and more so they can manage an estate after the estate owner passes away without a will.
What is the difference between a letter of probate and a letter of administration?
A letter of administration and a letter of probate have the same ultimate purpose: to give the ability to manage and settle an estate. But while a grant of probate is applied for by an executor of an estate with a will, a letter of administration can only be applied for and given for estates without an executor or a will.
Legal Process for Obtaining the Letter
To get a letter of administration when there is no will, you need to submit a series of documents to the local court, and the process is very similar to applying for probate.
Below is a list of steps and documents you’ll need for each, though specific details may vary from province to province.
Step 1: Notify others of your intention to apply
The first form is the notice of application form. You send this form to anyone related to the estate or related to the deceased, which may require some legal heir determination. Heirs tend to include the deceased person’s spouse, children, and blood relatives. They could be any person who would be legally entitled to a share in the estate. It’s important to note that in many provinces in Canada, common-law partners are not considered to be legal heirs.
In some provinces, such as British Columbia, you need to deliver these application notices at least 21 days before you submit your application for a letter of administration. This is so you can allow all relevant parties enough time to dispute your application, if they want to.
Step 2: Compile your application
After the provincial-mandated time between notifying relevant parties has passed, you can compile your application for your letter of administration to the court. This application will most likely include the following documents:
- A submission for an estate grant, which gives details about your application for administration.
- An affidavit of the applicant, which identifies you and your relationship to the deceased. There are often different versions of this document depending on if there is a will or not. If there is no will, the document you’ll need to use will likely have a section where you must swear that you made a diligent search for the will, that you followed the law’s requirements of searching in every place that could reasonably be considered a place where a will may be found for the deceased. If you are also an heir, you may need to submit an heirship affidavit as well.
- An affidavit of delivery, which confirms that notice of your application was delivered to everyone required.
- An affidavit of assets and liabilities, which outlines all the deceased’s assets and liabilities that would be part of the estate.
- Copies of a certificate of wills search, in addition to any accompanying wills searches. You can get these by doing a search of the wills registry.
Other documents may be required for your application, depending on your province.
Step 3: Submit your application and pay probate fees
Time to submit the application and all relevant documents. Typically, the courts may ask you to pay probate fees for the estate before you can receive your letter of administration. You’ll pay some of all of the probate fees related to the application when you submit the application itself. Not all estates require probate fees, as they are generally proportional to the value of the estate.
Step 4: Administer the estate
Once you’ve obtained your letter, you can proceed with accessing the estate’s assets and managing and distributing them according to provincial law.
Duties of the Administrator
As roles, estate executors and administrators are almost exactly the same. The only differences are how the person is appointed and whether or not they have a will to follow.
Like executor responsibilities, estate administrators are responsible for:
- Settling estate debts and liabilities
- Distributing assets to beneficiaries based on intestate succession law
- If needed, selling property and/or businesses
- Completing final tax returns
- Communicating with heirs and beneficiaries
Rights of Heirs and Beneficiaries
Regardless of whether there is a will, heirs and beneficiaries don’t have legal rights, but they do have expectations that should be met. If these expectations are not met, court action is possible.
If there is an estate administrator and no will, the legal expectations of the heirs and beneficiaries would include:
- The administrator provides all heirs and beneficiaries with notice when they apply for the letter of administration and begin the probate process.
- The administrator makes distributions to heirs and beneficiaries based on succession law.
- The administrator prepares records for beneficiaries of assets of the estates, including their conditions and the residue of the estate from all the administrator’s dealings.
- The administrator acts in the best interest of the heirs and beneficiaries at all times, always treating them equally and communicating with them often.
Should these expectations not be met, the heirs and beneficiaries of the estate are entitled to take the issue to court to have the administrator removed.
Potential Legal Challenges
Estate administrators, like executors, are not protected from their actions being contested. If they take advantage of their role and engage in self-dealing, they can face legal consequences. If their actions are not considered satisfactory to an heir or beneficiary and their role is contested, they may lose their position.
Settling an estate also tends to take longer when there is no will, as the administrator has to work without a pre-existing plan for the estate, and must navigate succession laws instead of final wishes from the deceased.
Practical Tips for Estate Management
Cornerstones of success in managing an estate include staying in open communication with heirs and beneficiaries, understanding the nuances of inheritance and estate laws, keeping detailed records, and knowing how to work efficiently and fairly.
But the first step to making sure your own estate is taken care of is to make your will, which you can do easily online!
To learn more about an administrator’s responsibilities, check out these articles: