By Lydia Roseman, Student-at-Law
This post seeks to answer the following questions:
who must a personal representative[i]
give notice to? When must notice be given? What must be included in that
notice?
There are a number of groups of people
that may be entitled to notice before a personal representative distributes the
assets of an estate. These notice requirements arise in a number of different
pieces of Alberta legislation meaning it can be challenging to figure out
exactly who you, as personal representative, must give notice to.
Exactly who is entitled to notice, and
what the notice looks like, can also vary depending on whether you are acting
with or without a grant. When the personal representative applies for a grant
of probate or administration, there are strict rules governing the form of
notice provided to the interested parties.
A personal representative may be acting
without a grant of probate or administration in a couple situations. For example,
if the deceased held all their assets jointly with another person, such as
their spouse, it may be that all their assets automatically transferred to that
other person. In that case, there may be no assets to administer and therefore
no need for a court order formally granting the representative the authority to
deal with assets. If all of the assets are held in cash or in bank accounts in
fairly small denominations, again the personal representative may be able to access
and distribute those assets without a grant (the bank may, however, require a
bond of indemnity before they release the funds).
Where, however, you are dealing with an
organization that requires a formal authorization to access the assets, for
example the land titles office for real property, you will need a grant of
probate or administration.
Below, this article addresses each group
of people that may be entitled to notice and what that notice will look like,
with or without a grant. As a starting point, notice must generally be given to
anyone who is a beneficiary or who may have rights under the Wills and
Succession Act (WSA) or the Family Property Act (FPA)
(formerly known as the Matrimonial Property Act).
Following that is a discussion of a
couple of special cases that may further complicate the notice requirements.
The post ends with a discussion of the potential consequences on a personal
representative of non-compliance.
Beneficiaries
No
Grant
Anyone who is entitled to a specific gift
or a share of the residue of the estate is a beneficiary and must be given
notice. This notice must be given even if there are no assets in the
estate.
The current notice requirements state
that the notice must:
1.
Identify the deceased.
2.
Provide the name and contact
information of the personal representative.
3.
Describe the gift left to the
beneficiary in the will or the applicable provisions of the WSA or Intestate
Succession Act.
4.
Provide the date of the
testator’s[ii]
will.
5.
If the beneficiary is a residual
beneficiary, provide a copy of the will.
6.
State that any gift is subject
to the prior payment of the testator’s debt.
The notice may be given using the Court’s
Form NGA 1. While the form of notice is flexible when acting without a grant,
we recommend using the Court’s recommended forms as a starting point. Using
these standard forms will save time and help ensure you provide the required
information to the individual.
Grant
All the beneficiaries under the will must
be identified on form NC 6 which is included in the application for the grant
of probate or administration with will annexed. The correct form of notice to
be given to those beneficiaries will depend on what the beneficiary is
receiving under the will.
If an individual is entitled to a
specific gift, such as a piece of property, notice is given in Form NC 20. This
notice includes a description of the specific gift to the beneficiary. If the
specific gift is no longer within the estate, for example if the piece of property
was sold prior to the testator’s death, then the beneficiary does not need to
be notified. You will, however, need to make a note in the grant application
that the gift no longer exists.
If the beneficiary is entitled to a share
in the residue of the estate, use Form NC 19 instead. The main difference is
that this form requires that you attach a copy of the application for the
grant, including a copy of the entire will and a list of the estate’s assets
and debts. The reason that a residual beneficiary is entitled to a copy of the will
and the list of assets and debts is because they need to have enough
information to know what their “residual gift” actually includes.
If there is no will, that is the deceased
died intestate, you must still give notice to the “heirs” of the estate. This
notice is completed via Form NC 21. The personal representative must identify
the share of the estate that will be distributed to the heir under the WSA.
In this situation, we suggest that you obtain legal advice to help you
determine who the heirs are and what they are entitled to.
Spouses and Adult Interdependent
Partners
No
Grant
Notice to a spouse or adult
interdependent partner (AIP) will usually be provided under the beneficiary
section above. However, there may be additional information that must be
provided. If the spouse or AIP is not the sole beneficiary under the
will, notice must be given to the individual of his or her rights under the WSA
and FPA. This essentially provides notice to the spouse or AIP that
there is a possibility they may have a claim to more of the testator’s estate. Forms
NGA 2 and NGA 3 can be used for this notice.
If the spouse or AIP is a dependent or
represented adult, instead send the notice to the individual’s trustee or
attorney using Form NGA 4.
Grant
As above when acting without a grant, if
the spouse or AIP is not the sole beneficiary under the will, there are
additional notice requirements. The applicant for the grant must serve on the
individual a copy of the application for the grant, Form NC 23 outlining their
rights under the WSA, and Form NC 22 outlining their rights under the FPA.
Where the spouse or AIP is a dependent or
represented adult, the notice must be served upon the attorney or trustee,
still using Forms NC 22 and NC 23.
Children
No
Grant
A child of the testator is not
automatically entitled to notice. Only a child who meets the definition of a
“family member” must be notified. Children born inside and outside the marriage
are treated the same. A child will qualify as a “family member” if he or she
is:
·
under 18 years of age
(including in the womb);
·
over 18 and unable to earn a
livelihood by reason of mental or physical disability; or
·
between 18 and 22 and a student
under his parents’ charge.
Where a child of the testator falls into
one of these categories, notice must be provided to the child referring them to
their rights under the WSA. This notice may be in Form NGA 2.
This notice will instead be served on the
child’s guardian if he or she is a minor, or on the child’s attorney or trustee
if he or she is unable to earn a livelihood due to mental disability. In these
cases, additional notice must also be provided which can be in Form NGA 4.
Where the child is a minor, notice must also be served on the Public Trustee
and can be in Form NGA 4. Note that the notices in both Form NGA 4 and NGA 2
must include a copy of the will.
Grant
The same definition of “child” applies
where the personal representative applies for a grant; therefore, the same
categories of children are entitled to notice. Those children (or their
guardians, trustees, or attorneys) must be given notice of their rights under
the WSA and a copy of their grant application.
Where the child is under 18 (including in
the womb), the notice is given to both the Public Trustee (Form NC 24.1) and
the child’s guardian (Form NC 24). If the child is over 18 and unable to earn a
livelihood by reason of physical disability, or falls into the student
category, Form NC 24 is served directly on the child. Finally, if the child is
over 18 but unable to earn a livelihood due to mental disability, Form NC 24
must be served on the child’s attorney and/or trustee.
Grandchildren and Great-Grandchildren
No
Grant
If the deceased stood in the place of a
parent to a grandchild or great-grandchild who was a minor on the date of
death, notice must be sent to the guardian of the grandchild or
great-grandchild (Form NGA 2) and the Public Trustee (Form NGA 4).
Grant
If the testator had a grandchild or
great-grandchild in the position described above, notice must be served on the
guardian of the grandchild or great-grandchild (Form NC 24) and on the Public
Trustee (Form NC 24.1).
Special Cases
Separated
AIP or separated or divorced spouse
If a spouse was separated from the
deceased but not yet divorced, that spouse is still entitled to the notice as
described above.
If an AIP recently separated from the
deceased, or a spouse recently divorced the deceased, that individual may still
be entitled to notice. A surviving ex-spouse or former AIP is entitled to
notice of their rights under the FPA so long as the individual could
have brought a family property division application immediately before the
deceased passed. These timelines can be quite complicated but generally this means
that if the deceased divorced a spouse in the last two years, or lived with an
AIP in the last 3 years, that individual may be entitled to notice.
Also note that it is possible for a
testator to have both a spouse and an AIP, or two spouses, falling within the
notice provisions. This could occur, for example, where a spouse and the
deceased were separated and the deceased lived with an AIP, or where the deceased
was divorced and remarried within two years of his or her death. When this type
of situation occurs, notice must be served on both individuals.
If you are handling an estate with former
spouses or AIPs, we recommend seeking legal advice to ensure you properly
fulfill your obligations to these individuals.
What
if an individual entitled to notice is deceased?
For example, if a beneficiary in the will
is deceased, but the gift has not lapsed, that beneficiary may still be
entitled to notice. The notice must generally be provided to the personal
representative of the estate, either appointed or listed in the will.
If there is a will but no personal
representative, consider contacting the Public Trustee to see if it would be
willing to apply for a grant of administration or act as administrator for the
deceased beneficiary. If the deceased beneficiary did not have a will but you
know who the heirs are under intestacy rules, it is a good idea to give notice
to the beneficiary’s heirs.
In this situation, you can also apply to
the Court for direction on how you should proceed.
What
if an individual owed notice is missing?
You cannot serve notice on an individual
if you cannot find them. What happens then? The personal representative must
make all efforts to find the individual. If the individual cannot be found, the
personal representative must apply to declare the person missing under the Public
Trustee Act. Once the individual is declared missing, any required notice
must be sent to the Public Trustee.
When should you give notice?
There is no specific legislated timeline
for sending notice to beneficiaries, spouses, and other family members
mentioned above. That being said, the personal representative cannot obtain a
grant of probate or administration, or distribute the assets of the estate,
until notice has been given.
We recommend providing notice as soon as
possible. To do so, the personal representative must have located the will (if
it exists), assessed the testator’s assets and debts, and identified all the
beneficiaries and family members. If the personal representative will be
applying for a grant, the application will need to be completed so that a copy
can be included in the notices. Once these steps are complete, the notices
should be sent.
How should you give notice?
A personal representative applying for a
grant must be able to prove that notice was served on the required parties (or
their lawyers). This is easiest to do by using registered mail. This will
provide confirmation of delivery that can readily be provided to the Court. You
can also personally serve someone, that is hand deliver to them yourself, and
then swear that you did so in an affidavit.
Finally, the party required to be served
can acknowledge their receipt of the documents. When applying for a grant, this
acknowledgement can be contained in Form NC 2 or on the bottom of the notice.
When acting without a grant, it is a good
idea to still follow one of these steps so that you are able to prove service
if you ever need to in the future.
Effect of Non-Compliance
If a personal representative fails to
provide the required notice, the Court has the discretion to:
·
order the personal
representative to provide the notice;
·
impose conditions on the
personal representative;
·
remove the personal
representative;
·
revoke a grant; and
·
make any other order it
considers appropriate.
Importantly, personal representatives are
also considered to be trustees within Alberta’s Trustee Act and are in a
fiduciary relationship with the beneficiaries. Breaches of fiduciary
obligations can lead to serious, personal consequences.
If you are ever in doubt about the
required notices, consider retaining a lawyer. The estate will usually pay the
legal fees associated with this advice.
Our Wills &
Estates team would be happy to help you with any issues that may arise
during your time as a personal representative.
[i] For ease of reading, I use the term personal representative and do
not differentiate between an executor and an administrator. In general terms,
the personal representative named in a will is an executor. When there is no
valid will or where the will fails to name a personal representative, the
acting personal representative is called an administrator.
[ii] A testator is a person who has written and executed a will.
