Responsibilities of an Executor or Administrator

The responsibilities of an executor or administrator are mostly the same. The following are some steps that they should take:

• locate the Will, if there is one
• locate the assets of the deceased and determine their value
• obtain a death certificate and notify various agencies of the death - some agencies will require a copy of the death certificate
• prepare a list of beneficiaries and their addresses
• file claims for life insurance, pension plans, death benefits
• pay funeral bills (banks may allow these to be paid directly from the deceased person's account if the bills are submitted to the bank)
• obtain the appropriate court order - Letters Probate or Letters of Administration, if required
• notify the Public Guardian and Trustee if there are any children under the age of 18 or dependant adults who may have an interest in the estate
• advertise for creditors in the required form and manner to help protect yourself from liability
• call in the estate - gather the assets, plan for sale or disposition of assets not specifically left to a named beneficiary, place all monies from all sources into an estate bank account
• transfer title of all real property to the estate
• pay the bills and debts of the deceased and the estate
• complete income tax returns and obtain the necessary Income Tax Clearance Certificate required to complete the distribution of the estate
• keep complete records of all assets coming into the estate and going out of the estate
• obtain releases from beneficiaries required to complete the distribution of the estate or arrange for the passing of accounts if there are any disputes among the beneficiaries - passing of accounts means asking the court to approve your financial records of the estate and your plan for distributing the estate
• distribute the estate according to the Will or The Intestate Succession Act, 2019 which sets out how to distribute an estate if there is no Will

Before distributing an estate to the beneficiaries, any liabilities or debts of the estate must be dealt with. The person handling the estate can be held personally liable for wrongly transferring assets out of the estate. It is important to understand what needs to be done before any distribution takes place.

A dependant spouse or child can apply for a share of an estate for their support. The court can review the Will and, if necessary, redistribute the estate to properly provide for dependants. As well, a spouse can apply to have family property divided before their spouse’s estate is dealt with. If the court divides family property, the estate will only include the deceased person's share of the property. These claims could result in fewer assets being available for distribution.

There is a six-month waiting period after Letters Probate or Administration are issued before the estate can be distributed. This allows dependants and spouses to apply for relief. An executor or administrator may be personally liable if they ignore this waiting period. Dependants and spouses may, however, provide written consent for an earlier distribution.

Where children under the age of 18 years have an interest or claim in an estate, the Public Guardian and Trustee becomes involved. The Public Guardian and Trustee ensures that a child's property interests are protected. This also applies to adults who lack capacity. Because of this, it may be necessary to obtain consent from the Public Guardian and Trustee before dealing with an estate. For example, where a child is a beneficiary, the Public Guardian and Trustee must consent before property like land or a house can be sold.

In Saskatchewan, children under 18 do not have the legal capacity to manage their own financial affairs. They do not receive their share of the estate outright until reaching at least the age of 18. A Will may authorize an executor to manage the child's share of the estate until they turn 18 or older. It may direct that the executor pay any expenses required to properly care for and maintain the child. When the Public Guardian and Trustee requires it, an accounting of the estate must be provided to them once a year.

When there are no minors or dependent adults interested in the estate, the application to deal with the estate must state this. Upon request and payment of a fee, the court can then issue a certificate that no one under the age of 18 is interested in the estate.

One of the duties of an executor or administrator is to pay any taxes of the deceased. This may include outstanding taxes from employment income or capital gains taxes. A person is deemed to have sold all the property in their estate on the date they die. Any increase in value of the property since it was acquired will usually results in capital gains. The estate must then pay income tax on half of the total capital gains. In the case of an RRSP, the whole amount is counted as income to the estate since no tax was previously paid on it. The only exception is if the deceased's spouse or a dependant is named as the beneficiary of the RRSP.

You can request a clearance certificate for an estate once you have:

• filed all necessary tax returns for the deceased person
• received the notices of assessment for those returns
• paid any outstanding amounts owed to the CRA

This clearance indicates that the deceased person has no outstanding tax liabilities with the CRA. Without this type of clearance, the person handling the estate can be held personally liable for any outstanding tax amounts.

All debts of an estate must be paid before distributing the estate to the beneficiaries. As an executor or administrator, you may not be aware of all the debts owed by the deceased or the estate. To protect yourself from unknown claims, you can advertise for creditors before you distribute the estate. This way you can pay any legal debts while there is still money in the estate to pay the debts and will not be responsible for debts you did not know about.

An advertisement for creditors needs to be placed in the newspaper nearest where the deceased lived. This must be done once a week for two consecutive weeks. An advertisement is also valid if it is posted on the NoticeConnect website for 30 days. The advertisement must be in the Notice to Creditors form. It must also include a date by which a creditor has to notify the estate of a claim. If you do not receive any notices from creditors and the date has passed, you can distribute the estate. This is still subject to the time limit for claims by spouses or dependants. A creditor cannot hold you personally liable for debts of the deceased if you have advertised in this way.

If a beneficiary is in bankruptcy, their share of the estate must go their trustee in bankruptcy. It is important for the person handling the estate to take steps to avoid improper pay-outs. You can search for information on bankruptcies through the Government of Canada’s database.

When a deceased person has a valid Will, their estate is distributed according to it. When there is no Will, the law sets out how the estate will be distributed. This only happens once all debts of the estate have been dealt with and certain waiting periods have passed. Beneficiaries receive the rest of the estate once all debts and liabilities have been dealt with.

An executor or administrator can distribute the estate:

• once the six month waiting period is over
• debts have been paid
• Canada Revenue Agency has issued a clearance certificate

Specific gifts set out in the Will are distributed first. Anything left is then distributed to the beneficiaries as set out in the Will.

When someone dies without a Will, they are said to have died intestate. In this case, their property is distributed according to the rules set out in The Intestate Succession Act, 2019.

This law does not take into account the wishes of the deceased or their family. An administrator must distribute the net value of the estate in accordance with the law. The net value of the estate is the value of the estate after payment of taxes, debts, funeral expenses and so on. Who the estate is distributed to depends on who survived the deceased and their priority according to the law.