Administering an Estate With No Will in Newfoundland and Labrador

When someone dies without a will, a relative often ends up with the job of sorting out the estate. Banks, land registries and others will want proof that you have the legal right to act, and that proof comes from the court.

This article explains who has priority to apply, how the application to the Supreme Court of Newfoundland and Labrador works, and whether you will need a bond. Every estate is different, so a lawyer can confirm how the rules apply to yours.

This article covers the law of Newfoundland and Labrador.

Do you need to apply at all?

Probate is not legally required in Newfoundland and Labrador, but a person who wants to dispose of estate assets needs a court document to prove the right to do so. Where the deceased held assets solely in their own name, such as land or bank accounts, and someone must sell, transfer or collect them, a grant is needed. If there is no executor, the Supreme Court must appoint an administrator.

The type of assets in the estate, not their value, usually decides whether an estate needs a grant. The court advises speaking with a lawyer if you are unsure. Some assets pass outside the estate altogether. Life insurance with a named beneficiary is generally not part of the estate, but if the designation is to the insured's 'heirs', 'next of kin' or 'estate', the money is paid to the estate and a grant will be needed, while a matrimonial home that spouses hold as joint tenants passes to the surviving spouse by right of survivorship, without probate or estate administration.

There is no time limit to apply, and a lawyer is not required to administer an estate. Acting without a grant can also leave you exposed. Where the deceased held assets solely in their name, such as land or accounts, that you must sell, transfer or collect, you need a grant, and where there is no executor the Supreme Court must appoint an administrator.

Who has priority to apply

The Rules of the Supreme Court set an order of priority for the right to administration, subject to the judge's discretion. The order is shown below.

Administration must go to a person who lives in the province in preference to someone with an equal right, unless a judge orders otherwise. If you are a relative who is not at the top of the list, you may need others with a higher claim to step aside, or the court may need to decide. A lawyer can help you sort out who is entitled to apply.

Being the administrator is different from being a beneficiary. The Intestate Succession Act sets who inherits on an intestacy, but a surviving spouse's rights under the Family Law Act are in addition to those rights, and a spouse may apply to divide matrimonial assets equally within 1 year after the first spouse's death. For example, a spouse with one child receives 1/2 of the estate, while a spouse with more than one child receives 1/3. Where there is a spouse and no issue, meaning no children or other descendants, the whole estate goes to the spouse.

How the application works

Every application starts by posting a Notice of Application with the Registry Office on Form 56.04A. After the 5-day notice period, you confirm that no caveat has been entered and no previous grant has been made, and then you file the petition and the inventory on Form 56.10A. The court may set a different notice period or dispense with notice. No grant may be made until the registry certifies whether a caveat has been entered and whether a previous grant exists.

A Notice of Application lapses 6 months after posting unless an application is made in that time or a caveat has been entered. So do not post the notice until you are ready to move.

The inventory is a valuation of the deceased's property in Newfoundland and Labrador, and it accompanies the petition. The court fee is based on that valuation.

• Gather information on the deceased's land, accounts and other property so you can complete the inventory.
• Confirm who has priority to apply, and whether others need to agree.
• Post the Notice of Application with the Registry Office.
• Wait out the notice period, then confirm no caveat or earlier grant.
• File the petition and inventory, and deal with the bond.

The court does not give a fixed processing time for a grant. The only fixed period it states is the 5-day notice period before the petition is filed.

Is a bond required?

Letters of administration are only issued if the administrator files a bond with two sureties, unless the court orders otherwise. The bond is set from the inventory value. A bond is a guarantee that protects the estate if the administrator mishandles it.

There are ways around it. The court can dispense with the bond on an affidavit showing there are no debts or that adequate provision has been made. The bond requirement also does not apply to a trust company authorized to do business in the province or to the Public Trustee, and the Public Trustee may be appointed administrator.

Costs, delays and what to do next

The charge on a grant is $60 where the estate does not exceed $1,000, plus $0.60 for each additional $100 of estate value. You pay it as the estate's representative, not personally. Other court fees may apply, such as $30 for a certified copy and $60 for orders other than default orders.

Delays often come from paperwork or disputes. The will, where there is one, must be attached and signed in specific ways. A caveat stops a grant from issuing until the person who entered it is notified and heard. For estates of Status Indians, Indigenous Services Canada may need to be contacted, because the court may be unable to process the application.

Once you have the grant, your work continues. Within 1 year after the grant issues, you must file an inventory and valuation, a statement of estate received, a statement of disbursements and a statement of the estate still outstanding. Before distributing, you notify known creditors.

• List the deceased's assets and note which ones pass outside the estate.
• Work out who has priority and talk to the other relatives early.
• Ask a lawyer about the bond and your duties before you post the notice.
• Keep careful records of everything you receive and pay.

Frequently asked questions