Estate administration act : Significant changes in the law.

• Author: Kelly, Sherrilynn

Introduction

The Estate Administration Act was proclaimed in force June 1st, 2015. It replaces the Administration of Estates Act. As such, the new Act applies to the administration of all estates, applications and grants. For many seniors, whose Wills stipulate that they will act as their spouse's executors, this is an important new law. There will be advantages and disadvantages with this transition rule. Importantly, it is possible to apply to the court to have the Act not apply; to rely on the prior Act; or to modify the application of the Act.

The definition of a personal representative has changed

A personal representative includes an executor, administrator and judicial trustee, as well as a personal representative named in a Will, whether or not a grant is issued. This latter point is of particular importance! The new Act creates a process to administer an estate without a grant of probate of the Will. For many older adults, whose assets such as their home may be jointly owned, probate may not be necessary. However, there are many reasons why a grant of probate may still be required. What is important to note is, whether a Will is probated or not, an executor has the same responsibilities in administering the estate.

Duties of a personal representative

These duties underscore the fiduciary role of a personal representative in plain language and require a personal representative to distribute the estate as soon as possible. In addition, a professional personal representative is required to exercise a greater degree of skill than a layperson personal representative.

The requirement that a professional personal representative is required to exercise a greater degree of skill than a layperson personal representative is a codification of the duty developed in the case law for a professional personal representative. The duties of any personal representative are:

* to act honestly and in good faith;

* in accordance with the testator's wishes and the Will, if a valid Will exists; and

* with the care, skill and diligence a reasonably prudent person would exercise in similar circumstances.

Core tasks of a personal representative

It is helpful to older adults that the Act clearly identifies that the core tasks of a personal representative are to:

* identify the assets and liabilities of a deceased;

* administer and manage the estate;

* satisfy the debts and obligations of the estate; and

* distribute and account for the administration of the...