Who Can Be Administrator When Someone Dies Without a Will in NL?

When someone dies without a will in Newfoundland and Labrador, there is no executor named to take charge. Someone still has to collect the assets, pay the debts and deal with the property, and that person usually needs a court appointment first.

This article explains who the court looks to first, how the process works, what the bond is, and what duties come with the role. It does not cover who inherits from the estate, which is a separate question.

This article covers the law of Newfoundland and Labrador.

Why an administrator is needed

Where the person who died held assets solely in their own name, such as land or bank accounts, someone must sell, transfer or collect them. That person needs a grant from the court, and where there is no executor the Supreme Court must appoint an administrator.

Not everything needs a grant. Life insurance with a named beneficiary is generally not part of the estate. A matrimonial home that spouses hold as joint tenants creates a right of survivorship in the surviving spouse, so it passes without probate or estate administration. If the insurance is payable to the person's estate, though, the money goes to the estate and a grant will be needed.

Who has priority to be appointed

The court's rules set an order of priority for the right to administration: the spouse, then children, parents, siblings and grandparents, followed by creditors and then the Crown. The judge keeps discretion to depart from that order.

There is also a preference for residency. Administration must go to a person who lives in the province in preference to someone with an equal right, unless a judge orders otherwise.

• Spouse first, then children, parents, siblings and grandparents.
• Creditors and the Crown come after family.
• A resident of Newfoundland and Labrador is preferred over a non-resident with equal right.
• The Public Trustee may also be appointed administrator.

If you are in line but do not want the role, or if several people have equal standing, it is worth talking it through as a family early. A lawyer can confirm how the order applies to your situation.

The administration bond

Letters of administration are only issued if the administrator files a bond with two sureties, unless the court orders otherwise. The bond amount is set from the inventory value.

The court can dispense with the bond if an affidavit shows 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.

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, the applicant confirms that no caveat has been entered and no previous grant has been made, then files the petition and the inventory on Form 56.10A.

The court may set a different notice period or dispense with notice, and no grant can be made until the registry certifies whether a caveat has been entered and whether a previous grant exists. 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.

The court gives no processing timeline for a grant. The only fixed period it states is the 5-day notice period. A lawyer is not needed to administer an estate, and the court says an estate can be administered at any time after death. Once a Notice of Application is posted, though, it lapses after 6 months unless an application is made or a caveat is entered.

The probate fee

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. It is based on the value shown in the inventory and valuation of property in Newfoundland and Labrador. For example, a $250,000 estate works out to $1,554.

The administrator pays in a representative capacity only, meaning as the estate's representative and not personally. If the estate is later valued lower, a refund of overpayment may be sought, and if it is valued higher, an additional amount is owed on the difference.

Duties once you are appointed, and what to do next

Within 1 year after the grant issues, the holder must file in the registry an inventory and valuation, a statement of the estate received, a statement of disbursements and a statement of the estate still outstanding. Before distributing, the administrator notifies known creditors. An interested person can apply to have an administrator removed, and beneficiaries can seek an order requiring an inventory and sworn account.

• Find out whether the person who died left any will, since that changes who applies.
• List assets held in the deceased's sole name and note any that pass outside the estate.
• Talk with family about who should apply, keeping the priority order in mind.
• Gather values so the inventory on Form 56.10A can be completed.
• Ask who could act as your two sureties, or whether the bond might be waived.
• Keep records of every payment and receipt for the one-year account.
• Speak with a lawyer if there is a dispute, unclear priority or an out-of-province asset.

Frequently asked questions