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
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
to administer and manage the
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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