Sunday, July 19, 2015

Amendments to Probate Rules Include Provision for Substitution of Personal Representative on Death


As I wrote acouple of weeks ago, the probate rules were amended effective July 1, 2015. Among the changes is a new provision dealing with the procedure for appointing a new personal representative (executor or administrator) when the deceased’s personal representative dies before completing the administration of the estate.

The new provision, Rule 25-14 (1.2) reads as follows:

Substitution of personal representative in the event of death

(1.2)If a deceased's personal representative dies, a person may apply in accordance with Part 8, subject to any directions given by the court under subrule (8) of this rule, to be substituted as the personal representative by filing 

(a) a copy of the death certificate of the personal representative,

(b) an affidavit setting out the request to be substituted as the personal representative and specifying the right to be appointed as personal representative on the basis that the person is one of the following:

(i)   the alternate executor;

(ii)   entitled to apply for administration of the estate in accordance with section 130 of the Wills, Estates and Succession Act;

(iii)   entitled to apply for administration with will annexed in accordance with section 131 of that Act, and

 
 
(c) an affidavit confirming delivery of the affidavit referred to in paragraph (b) to
(i)   every person who was entitled to notice under the original application, and
(ii)   any executors who
(A)  did not receive notice of the original application, and
(B)  have an equal or greater right to apply to be the personal representative.

 
As I read this provision together with Part 8 of the Supreme Court Civil Rules, which deals with how applications are made to court, in most cases, a person applying under this section (or his or her lawyer) will need to appear for a hearing before a judge or court master. Part 8 contemplates a hearing unless the order is one that may be made without notice or by consent of all of the parties. In most cases there will be persons to whom notice must be given, and it is not always convenient to have all parties sign a consent order, or there may be minors or others without capacity to consent.

Unless contested, the hearing should be straightforward, but with the need to appear, and wait in court while other matters are heard, the expense may be higher than if the order could be obtained by desk order (without a hearing).

The application may be made by an alternate executor, if the first named executor dies after probate. It may also be necessary if there are two executors, but he will provides that if one dies, and alternate is appointed. If there is no alternate named, then another person may apply to be appointed as an administrator.

Section 130 of the Wills, Estates and Succession Act sets out the order of priority for appointment as an administrator if there is no will, while section 131 sets out the order of priority if there is a will, but there is no executor or alternate executor willing and able to act. These sections are as follows:

Priority among applicants — intestate estate

130  If a person dies without a will, the court may grant administration of the deceased person's estate to one or more of the following persons in the following order of priority:

(a) the spouse of the deceased person or a person nominated by the spouse;

(b) a child of the deceased person having the consent of a majority of the children of the deceased person;

(c) a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person's children; 

(d) a child of the deceased person not having the consent of a majority of the deceased person's children; 

(e) an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration; 

(f) an intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration; 

(g) any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee's consent, the Public Guardian and Trustee. 

Priority of applicants — administration with will annexed

131  If a person dies leaving a will, and the executor named in the will renounces executorship or is unable or unwilling to apply for a grant of probate, or if no executor is named in the will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority: 

(a) a beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;

(b) a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;

(c) any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee's consent, the Public Guardian and Trustee.

Finally, if the “chain of executorship applies” (see my previous post), it will not be necessary for anyone to apply under Rule 25-14 (1.2). If the executor dies after receiving an estate grant, but before completing the estate administration, and the will does not name any other executor or alternate executor willing and able to apply, the executor of the now deceased executor may complete the administration. The executor’s executor will need to probate the will of the deceased executor.

The authority of the executor’s executor is confirmed in section 145 of the Wills, Estates and Succession Act:

Executor of deceased executor

145  If a deceased will-maker was an executor of a person who died before the will-maker, the executor of the deceased will-maker has all the rights, powers, rights of action and liabilities of the deceased will-maker with respect to the estate of the deceased person.

1 comment:

Stephen Brown said...

Especially in the cases involving the elderly, I feel the change in personal representatives is necessary. I hope that this adds a little more simplicity for loved ones faced with yet another recent lost. I look forward to seeing this law implemented.
http://rulelaw.blogspot.com/2015/07/amendments-to-probate-rules-include.html