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It's not uncommon for a family member to pass without having written a will. In those cases, the deceased relative would be considered intestate. To obtain legal authority to manage that family member's estate requires someone to apply to become the administrator of the estate. While an executor obtains their authority from the will, an administrator gets the authority to manage the estate from the court through letters of administration.
If there is no will and, subject to any rights of survivorship or designated beneficiaries, then you will need letters of administration or a court order to deal with the deceased's lands, bank accounts, investments, and most other assets.
To apply for letters of administration on behalf of someone, you should not be a complete stranger to the deceased. The legislation and our rules of court clearly identify the order in which a person has the right to apply to administer an estate. Preference is given to family members based on their degree of relationship to the deceased - in general, the closer the degree of relationship, the greater priority you have to administer the estate. For example, a sibling of the deceased would be preferred over a cousin. Furthermore, all individuals of the same or a closer degree of relationship must consent; otherwise, a court hearing is necessary. For example, if a cousin applies, then all cousins and other closer family members, like siblings, must consent, or else a court hearing is necessary.
The legislation and our court rules also require an administrator to be bonded unless consents are obtained from the relevant parties.
There are also limits on when an administrator can sell land without the consents of beneficiaries, and if the consents are withheld, an application could be necessary to insulate the administrator from liability.
Perhaps most importantly, if appointed to administer an estate without a will, then you must ensure that you are familiar with the rules of intestacy for distribution. This defines who receives what and how much from the estate after all distributions and disbursements are settled.
Should you require assistance with applying to administer a loved one's estate, please do not hesitate to contact the author or another member of the McKercher LLP estate administration team for assistance. Learn more about our services by visiting our Wills, Trusts, Estate Planning and Administration webpage.
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.
