Who Can Apply to Be Administrator With No Will in Saskatchewan?

When someone dies without a will in Saskatchewan, no one has been named to look after the estate. Someone usually needs to apply to the court for the legal authority to do so, and families often wonder who is allowed to step forward.

This article explains who has the right to apply, how people can pass that right along, what happens if there is no relative to act, what the court fees are, and what the administrator must do once appointed. It does not explain who inherits.

This article covers the law of Saskatchewan.

What an administrator is and when you need a grant

Where there is no will, the person who manages the estate is called an administrator, and the court document that gives them authority is Letters of Administration. An administrator is the counterpart of an executor, who is named in a will.

Whether you need Letters at all depends on the assets. The only asset that absolutely requires probate is an interest in land, including mineral rights, registered solely in the deceased's name. For other financial assets, the bank, credit union or trust company decides whether it needs Letters, so the first step is to ask the institution.

Some property passes outside the estate altogether, such as land held in joint tenancy with survivorship, bank accounts with survivorship, and life insurance or RRSPs and RRIFs with a named beneficiary. Letters may also not be required where the estate is $25,000 or less and includes no real property, but real estate always requires Letters for land transactions with Information Services Corporation (ISC).

Who has priority to apply

Section 11 of The Administration of Estates Act sets the order of priority to apply for Letters of Administration. In order, it is:

• The spouse
• The children
• Grandchildren and other issue, per stirpes
• The parents
• The siblings
• Nephews and nieces
• The next of kin of equal degree
• Creditors
• The official administrator

In plain words, those higher on the list generally have the first right to apply. If you are a child and there is a surviving spouse, for example, the spouse is ahead of you on the list. Who has priority to apply is a separate question from who inherits, and the two do not always match.

Stepping aside: renunciation and bonds

If you are entitled to apply but do not want the role, or someone else in the family is better placed, the people with a prior or equal right can sign a Renunciation of Administration (Form 16-26). This gives up their right so another person can apply.

The court may also require an Administration Bond (Form 16-31). A bond is a form of security for the estate. Whether one is needed depends on the circumstances, so ask the court staff or a lawyer if you are unsure.

If a minor or dependent adult may have an interest in the estate, which forms and notices apply depends on your situation, so it is worth confirming with the court staff or a lawyer.

When the Public Guardian and Trustee steps in

If there are no relatives, or the next of kin cannot act, the Public Guardian and Trustee is the Official Administrator and acts as the administrator of last resort. It generally does not act on estates below $25,000 or where a relative is able to administer.

That means that if you are a relative who can act, the expectation is that you will take the role yourself rather than leave it to the government.

Fees and what you must do once appointed

For comparison, on a standard probate application, where a will names an executor, the court fee is a Local Registrar fee of $200 plus a levy of $7.00 per $1,000, or portion thereof, of Total Part 1 Assets on the Statement of Property. The fee for an application for Letters of Administration may differ, so it is worth confirming with the court or a lawyer. Assets passing outside the estate are excluded. For example, a Part 1 estate of $500,000 produces a levy of $3,500 plus the $200 fee. Fees may change, so confirm the current amounts with the court.

Where the estate is $15,000 or less, court staff may help prepare the application, but only if you are the applicant, a Saskatchewan resident entitled to letters, and not a creditor; in that case the Local Registrar fee is $300 plus the same levy.

Once appointed, an administrator's common duties include:

• Securing, valuing and insuring the assets
• Publishing a Notice to Creditors (Form 16-48) once a week for two consecutive weeks in the newspaper nearest the deceased's last residence
• Opening an estate account and paying debts, which must be paid before gifts go to beneficiaries
• Filing tax returns and obtaining a CRA clearance certificate before final distribution, which cannot happen until the certificate is received; a representative who distributes assets before getting it can be held personally liable, up to the value of the assets distributed, if tax is still owing
• Accounting to beneficiaries within two years, or passing accounts at the court house if disputed

What to do next

• Find out whether the estate includes land or assets an institution will not release without Letters.
• Talk with family about who is highest in the priority order and whether anyone wishes to renounce.
• Gather the death certificate and a list of assets and debts.
• Ask the court staff which forms apply to your situation.
• Speak with a lawyer if the estate is large, insolvent, includes minors, or the family disagrees.

If the estate may be insolvent, the province recommends consulting a lawyer and, if needed, applying to the court for directions.

Frequently asked questions