Duties of an Executor in Newfoundland and Labrador: Step by Step

Being named executor is an honour, but it also comes with legal responsibilities. You are acting for the estate, and for the people who will receive from it, at a time when you may also be grieving.

This guide follows the job in the order it usually happens in Newfoundland and Labrador: understanding your role, getting the grant, handling debts and assets, accounting, and finally distributing.

This article covers the law of Newfoundland and Labrador.

Step 1: Decide whether you need a grant

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. The Supreme Court says the type of assets, rather than their value, usually decides whether an estate should be probated. Where the deceased held land or accounts solely in their name that you must sell, transfer or collect, you need a grant.

A grant also protects you. An executor who acts without one may be liable if the will is later found invalid. Some assets pass outside the estate, such as insurance with a named beneficiary, or a matrimonial home held jointly by spouses. But insurance payable to the 'estate', 'heirs' or 'next of kin' is treated as payable to the personal representative, so you would need a grant for it.

Step 2: Apply to the court

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

Executors named in the will have first priority to apply, then residuary legatees, then the Crown, subject to the judge's discretion. You can also renounce probate, which means you stop acting as executor. If you are thinking of stepping aside, get advice before taking any steps with the assets.

The fee is $60 where the estate does not exceed $1,000, plus $0.60 for each additional $100 of estate value. On a $250,000 estate that works out to $1,554. You pay it in your representative capacity only, not personally.

Step 3: Manage the estate and deal with creditors

• Secure and collect assets once you have authority, and keep records of everything received and paid.
• Notify known creditors before distributing. Creditors must prove their debts immediately after the grant.
• If you invest, use the care, diligence and skill of a reasonably prudent person.
• If you compromise a claim in good faith, you carry no liability for it.
• If you are unsure about a decision, you can apply to court for directions.

If you distribute to someone whose claim you had no notice of at the time, you are not liable for those assets, although a creditor can still follow them. That is why notifying creditors first matters.

Step 4: Account, be paid, and distribute

Within 1 year after the grant issues, you must file 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 can seek an order on ten clear days' notice requiring an inventory and sworn account. A judge may dispense with accounting if it is unnecessary.

On payment, the court may allow remuneration beyond actual expenses, with a total not to exceed 1/20 of the realized value of the assets. Compensation set out in the will generally replaces that.

If you do not do the job properly, an interested person can apply to the court to remove an executor or administrator.

What to do next

• Locate the original will and list assets, noting which pass outside the estate.
• Decide whether you need a grant for the assets you must deal with.
• Open a file and keep every receipt and statement for the later accounts.
• Identify creditors and plan to notify them before any distribution.
• Speak with a lawyer if there are caveats, disputes, an out-of-province asset or a difficult family situation.

Frequently asked questions