Administering a Deceased Estate DUNNING PLACE

Transcription

1 Administering a Deceased Estate DUNNING PLACE

2 Administering a Deceased Estate An executor appointed under a will is entitled to administer an estate. If there is no will, the closest relative is entitled to administer the estate. The Public Guardian and Trustee (PGT) is a place of last resort and becomes involved in administering estates when there is no next of kin, the next of kin does not want to act, or the family is in dispute over who should administer the estate. It can take between three to four years to complete the administration of an estate. The PGT, as Official Administrator, will attend to funeral arrangements for a deceased only when the deceased has no known next-of-kin or where no next-of-kin will take or are unable to take responsibility for these arrangements. When the PGT has begun to act and is notified that someone else is appointed by the Court as administrator, the Office will prepare a report and hand the assets to the administrator. All Acts, Regulations and Forms referred to in this booklet can be found at our web site at Beneficiaries The PGT, as administrator of an estate, is required to identify and locate all beneficiaries of an estate. The Office searches for information about the relatives of the deceased to determine the beneficiaries. The Intestate Succession Act along with The Wills Act, The Family Property Act, and The Domestic Relations Act legislate who, in succession, would be a beneficiary of a deceased estate. Beneficiaries are verified by obtaining executed heirship affidavits. Additional documentation to support the determination of beneficiaries may be required and may include birth, death, and marriage certificates, written confirmation of adoption and DNA testing. The Administration of Estates Act does not define a common law spouse. Typically, the Office will require a person claiming to be a common law spouse to obtain a Court 1

3 Order declaring the person to be a spouse. Based on Court decisions, some factors to consider when determining whether or not a spousal relationship exists are: shelter whether the parties lived under the same roof, and the sleeping arrangements; sexual and personal behavior such things as whether they maintained an attitude of fidelity to each other, ate their meals together, assisted each other in illness, gave each other gifts, etc.; services who performed the chores necessary to sustain the household; social whether they participated together in community activities and how they conducted themselves around extended family; societal how the community viewed their relationship; and support (economic) how their finances were arranged and how they hold their property. Legislation requires that, in certain circumstances, the estate cannot be distributed for six months after Letters Probate or Letters of Administration are obtained. These circumstances include: dependants of the deceased may have a claim pursuant to The Dependants Relief Act because the will did not make adequate arrangements for their support. Dependents include a legal, common law or same-sex spouse, children under the age of 18 years; or children over the age of 18 years who by reason of physical or mental disability are not able to support themselves; and a legal, common law or same-sex spouse who was not named as the sole beneficiary of the estate may apply for a division of the family property after the death of the other spouse. It is necessary to confirm and locate all of the beneficiaries in an estate before estate assets can be distributed. In some estates, it is necessary to hire an heir locator to assist in the location of the beneficiaries even though it takes considerable time. Once the heir locator has indicated that he or she cannot go further, then it is necessary to make a court application directing our Office as to how to pay out the funds. 2

4 Estate Assets - assets owned by the deceased at date of death (Part I Assets) The PGT, as administrator of an estate, is required to identify, locate, secure, value and insure all assets of an estate. The PGT will review the personal papers of the deceased, write inquiry letters, conduct searches of Information Services Corporation, Saskatchewan Government Insurance, and publish a notice to creditors as required by The Administration of Estates Act. It is necessary to determine: Cash assets of an estate including funds held in banking institutions, investment companies, insurance companies, trust companies, pensions and benefits provided by government agencies. Personal property including vehicles, farm equipment, jewelry, firearms, household items, musical instruments, electronic equipment, antiques and collectables. Real property owned by the estate. An investigation is conducted to obtain an evaluation report from a land appraiser, an Agrologist, a market evaluation from a real estate agent, or a property assessment from civic/rural municipality. Pending the sale or transfer of agricultural or residential property, it may be advisable to lease or rent the property. Under The Devolution of Real Property Act, a lease cannot be for more than one year unless there is beneficiary consent. Real property will be dealt with in one of the following methods: Transferred to all beneficiaries as part of their distributive share; Transferred to one beneficiary as part of his/her distributive share; Transferred to a rural or civic municipality in lieu of property tax arrears; Transferred to a mortgage holder; Sold to satisfy creditor claims; Sold at the request of all beneficiaries. 3

5 If there are estate debts and insufficient funds to pay those debts, then real property will be sold to pay those debts. In these instances, the consent of the beneficiaries is not required. If the estate is not insolvent and beneficiaries wish the land to be sold, it should be transferred into their name and then they are free to sell it. There will be cases where the beneficiaries will request the PGT to attend to the sale of the property. When the Office sells property, the following is required: written consent of all of the beneficiaries; Certificate of No Infants Interested, when there are no minor beneficiaries (children under the age of 18); for minor beneficiaries, the following is required: consent from the legal guardian as children under the age of 18 cannot give legal consent, an acknowledgement from each minor beneficiary fourteen years of age or older, which indicates that he or she has been advised of the particulars of the proposed sale of real property and consents to the sale, consent to the transfer of the property must be obtained from Children s Services. This authorization document is a requirement of Information Services Corporation (ISC). In Saskatchewan when an estate has real property it must be transmitted at ISC into the name of the administrator of the estate. Afterwards, if the estate is not insolvent, the property can then be transferred into the name of one or more beneficiary. Part II Assets Part II Assets include property jointly owned with the deceased at date of death, assets with a named beneficiary, and property outside Saskatchewan. Typically the PGT, as the administrator of the estate, does not deal with these assets. Estate Debts - debts owed by the deceased at date of death In estate administration, it is necessary to identify the debts of the estate. 4

6 The PGT will review the personal papers of the deceased, make direct inquiries to family, friends, neighbours, businesses and conduct Writ and Personal Property Registry searches. In addition, a Notice to Creditors will be published as required by The Administration of Estates Act. This will be published in a newspaper located in the closest community to where the deceased last resided. In some instances, the estate of the deceased may be insufficient to pay all the outstanding debts. The PGT, as administrator of the estate, must ensure that the debts are paid from the estate, to the extent possible, in accordance with the relevant law. Debts of the deceased must be paid before any of the gifts provided for in the Will are given out to a beneficiary. Where there are insufficient assets in the estate to pay all creditors, generally, the debts of an insolvent estate are paid in the following order: 1. Secured creditors are paid, to the extent of the value of the asset over which they have security. If there is a deficiency, i.e. the value of the asset is less than the debt owing, the secured creditor will rank with the other unsecured creditors with respect to the deficiency; 2. Reasonable funeral and testamentary expenses incurred by the legal executor or administrator of the deceased; 3. The costs of administration of the estate, in the following order: a) the expenses and fees of the executor or administrator; b) legal costs; 4. Debts that have legislative priority: for example, maintenance for children or rent owing to a landlord or wages, salaries or commissions owing to an employee of the deceased; 5. Debts owing pursuant to the Income Tax Act; 6. All other unsecured debtors, including claims of the Crown in right of Canada or of any province that do not have legislative priority, are then to be paid. If there are insufficient funds, they are paid rateably. 5

7 After the PGT has determined the beneficiaries of the estate and the estate assets, an application for Letters of Administration will be made to the Court. When the value of the estate does not exceed $25,000, the PGT has the same power and authority to administer the estate as if the Court had granted Letters of Administration. The Court application must also contain a schedule of assets and that debts consisting of the following: Part I statement of property owned by the deceased at date of death Part II - statement of property jointly owned with the deceased at date of death assets with a named beneficiary property outside Saskatchewan Debts list of creditors as at date of death Income Tax The PGT, as administrator, is required to finalize the estate income tax to avoid being liable for unpaid taxes, interest and penalties. The Income Tax Act requires that every administrator, executor, and trustee (the responsible representative ) obtain a final clearance certificate from Canada Revenue Agency (CRA) before distributing to the beneficiaries any property under their control. The responsible representative can be held personally liable if assets are distributed prior to the receipt of the final clearance certificate. The PGT will review the last five years of the deceased s income tax returns and financial information. In some instances, it is necessary to file prior income tax returns, which may take significant time to gather the information required to complete the return. The following is the process for estate income tax, unless the estate is insolvent: T1 date of death return (for the period from January 1, to the date of death) Annual T-3 Return(s) (to be filed annually for the year(s) after the date of death) 6

8 If real property or other estate assets do not need to be sold to pay estate debts, a Clearance Certificate to Date of Death, or Partial Clearance, must be issued by CRA before the assets can be distributed to beneficiaries. After all real property and estate assets are sold or transferred to beneficiaries, all prior returns have been filed and assessed, all tax has been paid a windup date can be selected. At this time, final T3 income tax return must be filed. It can take three to eight months to receive a Notice of Assessment for this return. After the Notice of Assessment is received for the Final T3 income tax return, an application will be made to Canada Revenue Agency for a Final Clearance Certificate. It can take three to six months for the Final Clearance Certificate to be issued. This clearance certificate covers income tax liability up until the windup date. Until the Final Clearance Certificate has been received, and all income tax owing has been paid, funds cannot be distributed to beneficiaries. After the Final Clearance Certificate is issued, it may be necessary to file a Final T3 return from the windup date until the release date. If all of the beneficiaries reside in Canada, it might be possible to allocate the interest to the beneficiaries for this time period. If there is a beneficiary that resides outside of Canada, an NR4 Return must be filed and the non-resident withholding tax (Part XIII tax) must be submitted to CRA. An NR4 slip must be sent to the beneficiary. If there are estate assets or estate funds available to be distributed to the beneficiaries, the PGT, as administrator, will provide each beneficiary with an estate accounting and a release. The estate cannot be distributed until a release is received from every beneficiary. If the PGT is not able to obtain releases from all beneficiaries, an application will be made to the Court to have the accounts passed. Where a beneficiary is under the age of 18, the PGT will obtain a signed release from the legal guardian. The distributive share that is payable to the infant beneficiary is then transferred to Children s Services of the PGT to be held in trust. 7

9 Fees The fee payable to the PGT for administering an estate, are pursuant to the Regulations to The Administration of Estates Act. A summary of our fees are as follows: the amount equal to or the greater of: $ if the value of the gross assets of the estate is: $50,000 or less, 7% of that value between $50,000 and $100,000 - $3, plus $5% of the value of the value in excess of $50, more than $100,000, $6, plus 4% of the value in excess of $100,000 real estate fee for the sale of real property minimum $100, maximum $500 income tax fee $100 for the preparation of each income tax return plus disbursements, legal costs and all out of pocket expenses. This booklet is a summary and a guide based on the law. It is not as comprehensive as the law itself. It is not legal advice. If, after reading this booklet, you have questions or are uncertain about how to interpret the information, you should consult with a lawyer. Contact Information Public Guardian and Trustee of Saskatchewan Smith St. REGINA, Saskatchewan S4P 4W4 Telephone: (306) Toll Free: Fax: (306) pgt@gov.sk.ca Web site: Office Hours: Monday through Friday, 8:00 a.m. to 5:00 p.m. (Closed for the noon hour and holidays) 8