Duties of an Executor in Newfoundland and Labrador Explained

Being named executor means taking on a legal job, often during a hard time. The role has real responsibilities, but they follow a fairly clear order.

This article walks through the main duties in Newfoundland and Labrador, from the first steps to the final accounting.

This article covers the law of Newfoundland and Labrador.

Starting out: the will and the grant

Begin by locating the original will. Probate is not legally required, but an executor who wants to dispose of estate assets needs Letters of Probate to prove the right to do so. An executor who acts without a grant may be liable if the will is later found invalid.

Priority to apply goes to executors, then residuary legatees, then the Crown, subject to the judge's discretion. A person who renounces probate stops acting as executor.

Every application starts by posting a Notice of Application with the Registry Office (Form 56.04A). After the 5-day notice period, you confirm that no caveat has been entered and no previous grant has been made, then file the petition, inventory (Form 56.10A) and the will.

A Notice of Application posted on or after January 1, 2003 lapses 6 months after posting unless an application is made in that time or a caveat has been entered.

Not everything in an estate needs a grant. Where a beneficiary is designated, life insurance money is not part of the insured's estate and is not subject to the insured's creditors, and an irrevocable designation filed with the insurer also keeps it out of the estate. If the designation names the insured's heirs, next of kin or estate, the money is paid to the estate and the executor will need a grant. A joint tenancy of the matrimonial home gives the surviving spouse a right of survivorship without probate or estate administration. Employer pension plan benefits can be paid to a person named in a signed written designation.

Where the deceased held land or accounts solely in their own name that an executor must sell, transfer or collect, a grant is needed. If the grant was made outside the province, the Supreme Court can reseal it so an out-of-province executor can deal with assets here, and resealing has the same effect as a local grant.

Managing the estate

• Gather and protect assets, and prepare the inventory and valuation of Newfoundland and Labrador property.
• Pay the grant fee as the estate's representative, not personally.
• If you invest estate money, use the care, diligence and skill of a reasonably prudent person.
• If you compromise claims in good faith, you carry no liability for doing so.
• If unsure how to proceed, you may apply to court for directions.

The court charge on a grant is $60 where the estate does not exceed $1,000, plus $0.60 for each additional $100 of estate value. It is based on the inventory and valuation of property in Newfoundland and Labrador. For example, a $250,000 estate works out to $1,554. If the estate is later valued lower than first certified, the representative may apply for a refund of overpayment, and if it is valued higher, an additional amount must be paid on the difference.

If there is no executor and an administrator is appointed, letters of administration are only issued if the administrator files a bond with two sureties, unless the court orders otherwise. The bond requirement does not apply to a trust company authorized to do business in the province or to the Public Trustee.

Creditors and distribution

Creditors must prove debts immediately after the grant, and before distributing you notify known creditors. An executor is not liable for assets distributed to someone whose claim they had no notice of at the time, though a creditor can still follow the assets.

Be aware that a dependant may apply under the Family Relief Act within 6 months after the grant, though a judge may allow an application for any undistributed part of the estate, and the court can stop distribution once notice is served. Check this before you distribute.

Accounting and compensation

Within 1 year after the grant issues, the holder must file in the registry an inventory and valuation, a statement of estate received, a statement of disbursements (funeral expenses, debts, estate) and a statement of the estate still outstanding.

Beneficiaries, creditors or sureties may seek an order, on ten clear days' notice, requiring an inventory and sworn account. A judge may dispense with accounting if unnecessary.

The court may allow remuneration beyond actual expenses, with a total not exceeding 1/20 of the realized value of the assets. Compensation set out in the will generally replaces it.

Any interested person may apply to have an executor removed.

When a grant is delayed or challenged

The court gives no processing timeline for a grant; the only fixed period it states is the 5-day notice period before the petition is filed. Several things can slow the process down.

• A caveat: once one is entered, a grant cannot issue without the caveator being notified and heard, and the applicant must within one year start a proceeding to expunge it or, for probate, to prove the will in solemn form.
• Solemn form: the court or a judge may require a will to be proved in solemn form where circumstances appear to justify it.
• Paperwork: the will must be attached as Schedule A, signed on the back by the applicant, the witness giving the Proof of Will and the person taking the affidavits, with all schedules initialed.

How a dispute applies to your estate depends on the facts, so it is worth confirming with a lawyer.

What to do next

• Find the original will and confirm you are named.
• Decide whether to act or renounce.
• List assets and debts and prepare the inventory.
• Post the Notice of Application and follow the registry steps.
• Keep clear records of all money in and out.
• Get legal advice if there is a dispute, a caveat or unclear assets.

A lawyer is not required to probate a will or administer an estate, but advice can help when things are complicated.

Frequently asked questions