Tacium Vincent & Associates understands the difficulty that comes with handling the affairs of a loved one who has recently passed away. To assist in the process we have created a FREE INFORMATION PACKAGE regarding the probate and administration of estates and which we can deliver via mail with no obligation.
When you are ready to speak to a lawyer regarding the estate of the deceased, we will help guide you through the process every step of the way. At your initial meeting, you will sit down with one of our lawyers, and discuss the assets and liabilities of the deceased. The checklists included in the information package provide some detail on the type of questions asked by the lawyer at the meeting. At that time the lawyer can answer any questions you may have.
Navigating the estate of a loved one can be an emotional and complicated process. At Tacium, Vincent & Associates we are committed to making your visit a comfortable and simple experience so that you can feel at ease during an already difficult time.
At Tacium, Vincent & Associates we offer friendly and efficient service for estate work. We pride ourselves on our ability to handle all estate matters quickly and professionally with no unnecessary delay.
We have provided some general information as to the legal issues which may arise when an individual dies.
Where there is a will
The first consideration is whether the deceased passed away with a valid will. If the deceased left a will, the executor named in the will must formally ask the court for a Grant of Probate in order to administer the estate according to the will. Probate is a legal term meaning “to prove”. In granting probate, the court decides whether the will is valid and whether the executor named in the will should be appointed. The original of the deceased’s will must be submitted to court for probate. A copy of the will alone is of no value and operates as though the deceased did not have a valid will.
The executor’s role comes with many legal rights and obligations. It is a voluntary position and it is often wise to speak to a lawyer before undertaking efforts as an executor or renouncing an executorship.
Where there is no will
If the deceased passed away without a will (they are said to have died intestate) or if there is a will but the executor named is predeceased or is unable or unwilling to act for the estate, another individual interested in the estate must formally ask the court for permission to settle the deceased’s affairs. The court appoints such a person by a Grant of Letters of Administration. The person appointed by the court is called the administrator.
A surviving spouse has the first right to apply as the administrator. If the deceased did not have a spouse at death, the adult children, parents, siblings, nieces or nephews of the deceased each have a right to apply in turn. To qualify for appointment as an administrator an individual:
- must be a resident of Manitoba and at least 18 years old;
- must file documents proving that every family member with an equal or greater right to administration supports the application;
- may have to sign a bond for more than the value of the estate as a guarantee to pay if the estate is not administered properly;
- may have to provide a surety for estates worth more than $50,000.00.
Duties of an Executor or an Administrator
The executor or administrator is responsible for properly administering the estate of the deceased, including:
- obtaining the most recent original will signed by the deceased;
- taking charge of the deceased’s property, including any property owed to the deceased;
- maintaining all insurance on property, including changing insurance to vacant possession, if necessary;
- determining the value of the estate;
- applying for probate or administration of the estate;
- paying all rightful debts of the deceased;
- posting a notice to creditors, if required;
- paying funeral expenses of the deceased;
- filing a final income tax return for the deceased and paying all amounts owed in the year of the deceased’s death;
- applying for all Canada Pension Plan benefits;
- cancelling all credit cards and redirecting mail;
- administering the estate as required and delivering any cash, property or articles described in the will to the appropriate beneficiaries;
- preparing a final accounting of the estate.
An executor or administrator is entitled to take a fee for their time and efforts. The law provides that the fee must be “reasonable”, however, does not state an amount. Determining what is “reasonable” will depend on how large and complicated the estate is and the amount of work involved. An executor or administrator may choose not to take a fee if they wish.
Death of a Spouse
Upon the death of a spouse, generally, assets that the spouses owned jointly can be transferred directly to the surviving spouse with the completion of the necessary forms at each financial institution. However, assets which were held in the deceased spouse’s name alone most often will only be released to the executor or administrator of the estate after a Grant of Probate or Letters of Administration have been granted by the court.
If the spouses held assets jointly, or if the surviving spouse was a named beneficiary, the following assets may be paid directly to the surviving spouse:
- joint bank accounts at financial institutions;
- safety deposit box contents;
- Canada savings bonds;
- life insurance benefits;
- transfer of title for real property owned as joint tenants;
- tax free savings accounts (TFSAs) with a named beneficiary;
- pension plan or retirement plan death benefits (including RRSPs or RRIFs) with a named beneficiary.
As the surviving spouse, you may be required to complete the specific forms for each institution holding the asset. This may include providing official proof of death, such as a death certificate, before assets can be transferred.
If there is property held in the deceased spouse’s name alone or any asset which names a beneficiary other than the surviving spouse, it may be necessary to probate the will or apply for Letters of Administration.
Is a Lawyer necessary?
A lawyer has specialized training to assist an executor or administrator with the complexities of an estate. The advice of a lawyer can often prevent mistakes which cost time and money. At Tacium, Vincent & Associates, we have specialized in estate work for over 30 years. We pride ourselves on our ability to administer estates professionally and efficiently without any unnecessary delay.