Revised Statutes of Alberta 2000 Chapter A-2
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:
Table of Contents 1 Definitions Part 1 Applications to the Court Generally 2 Jurisdiction 3 Time lapse before grant 4 Quebec notarial wills 5 Bond requirements Notice to the Public Trustee and Others 6 Notice to Public Trustee 7 Notice to dependants Procedure to Avoid Duplication of Grants 8 Notice to Deputy Minister of Justice and Deputy Attorney General 9 Certificate for issue of grant 10 Procedure where more than one application Caveats 11 Caveat against issue of grant 12 Particulars of caveat 13 Effect of caveat 14 Application after caveat 15 Expiry of caveat 16 Discharge of caveat 17 Notice to caveator 18 Effect of withdrawal or expiry of caveat Deceased Persons’ Estates Under $3000 19 Applications in small estates Executors Excluded from Applying 20 Executor renouncing probate 21 Death of executor 22 Minor as sole executor Applications for Administration 23 Persons entitled to apply 24 Grant in special case 25 Interim administration by Public Trustee 26 Grant when litigation pending 27 Temporary administration 28 Special and limited grants Resealing of Foreign Grants 29 Resealing of foreign grants Part 2 Administration of Estates Generally 30 Order to restrain intermeddling 31 Legal representative only to act 32 Change in bond 33 Proceedings on bond 34 Legal proceedings after grant revoked 35 Acting under revoked grant 36 Grant made without jurisdiction Distribution of Estates of Deceased Persons 37 Distribution of estate 38 Limitation of actions 39 Mortgage on estate property 40 Verification of claims 41 Deciding contested claims Section 1 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 42 Ranking of debts 43 Covenants, etc., in leases 44 Rents, etc., in conveyances Accounting 45 Passing of accounts 46 Accounting by trustee under will 47 Powers of court on passing of accounts 48 Final passing of accounts Part 3 General Rights and Liabilities of Executors and Administrators 49 Distress for rent 50 Joint contractors, etc. 51 Sale, etc., to satisfy debts, etc. 52 Extension of powers to persons in whom property vested 53 Purchasers or mortgagees 54 Execution of directions by executor 55 Sale, etc., by administrator 56 Sale, etc., by administrator with will annexed 57 Conveyance by legal representative 58 Duties and liabilities of legal representative 59 Survivorship Application to Court for Advice 60 Application to court for advice Remuneration and Fees 61 Remuneration to legal representative 62 Costs 63 Preparation of application 64 Transitional
Section 1 ADMINISTRATION OF ESTATES ACT (a) “administration” means letters of administration of the property of a deceased person, whether with or without the will annexed and whether granted for general, special or limited purposes; (b) “clerk” means the clerk of the court for a judicial district; (c) “contentious business” means (i) the proving of a will in solemn form, (ii) proceedings in which the right to obtain or retain a grant is in dispute, and (iii) proceedings to discharge a caveat; (d) “court” means the Court of Queen’s Bench; (e) “grant” means (i) a grant of probate, (ii) a resealed grant of probate or administration, (iii) a grant of administration, or (iv) a grant of trusteeship of the estate of a minor or an order under the Minors’ Property Act appointing a trustee of a minor’s property; (f) “judge” means a judge of the Court of Queen’s Bench; (g) “legal representative” means an executor, an administrator, a judicial trustee of the estate of a deceased person, a guardian of a minor, a trustee of a minor’s estate or a trustee of a minor’s property appointed by an order under the Minors’ Property Act; (h) “non-contentious business” means a proceeding or matter pertaining to probate, administration or guardianship, but does not include contentious business; (i) “Rules” means the Surrogate Rules or any successor to those rules made under the Court of Queen’s Bench Act; (j) “testamentary matters and causes” includes all matters and causes relating to a grant of or revocation of probate or administration; Section 2 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 (k) “will” includes a testament, a codicil, an appointment by will or by writing in the nature of a will in the exercise of a power, and any other testamentary disposition. RSA 2000 cA-2 s1;RSA 2000 c16(Supp) s39;
Applications to the Court Generally Jurisdiction 2(1) An affidavit made in support of an application to the Court of Queen’s Bench for a grant and deposing that the place of residence or some property of the deceased person or minor is within Alberta is conclusive for the purpose of giving the court jurisdiction.
When the application is pending and it is shown to the court (a) that the deceased at the time of the deceased’s death was not resident or did not have property within Alberta, or (b) that the minor does not reside or have property within Alberta, the court may stay the proceedings and make any order as to the costs of the proceedings that it thinks fit. RSA 2000 cA-2 s2;RSA 2000 c16(Supp) s39 Time lapse before grant
(a) no grant of probate or of administration with the will annexed shall be issued until a lapse of 7 days after the date of death of the deceased, and (b) no other grant of administration shall be issued until a lapse of 14 days after the date of death of the deceased. RSA 1980 cA-1 s3 Quebec notarial wills
Section 5 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 Bond requirements 5(1) Except where otherwise provided by this or any other Act or by the Rules, no grant of probate or administration shall issue unless the applicant has given a bond in accordance with the Rules with at least 2 sureties in double the aggregate value of the estate.
A bond is not required to be given on an application for probate (a) when the applicant is the executor under the will and is resident in Alberta, or (b) when at least one of the executors applying is resident in Alberta.
Before the issue of a grant a judge may, subject to the Rules, dispense with a bond, reduce the amount of the bond, permit a bond to be given with one surety or accept other security instead of a bond.
No clerk and no solicitor for an applicant shall become a surety of a bond given under this Act. RSA 2000 cA-2 s5;2004 cM-18.1 s18 Notice to the Public Trustee and Others Notice to Public Trustee 6(1) When an application is made for a grant of probate or administration, the applicant shall send a copy of the application to (a) the Public Trustee, if a minor, a person who was a minor at the date of death or a missing person is interested in the estate to which the application pertains or if the Public Trustee is the committee of the estate of a person who is interested in the estate to which the application pertains, and (b) the committee of the estate of a person who is interested in the estate to which the application pertains, where the committee is a person other than the Public Trustee.
An application to which this section applies shall not be proceeded with until the Public Trustee or the committee, as the case may be, is represented on the application or has expressed the intention of not being represented. 6
to (5) Repealed 2004 cP-44.1 s48.
In this section, “missing person” has the meaning given it in the Public Trustee Act. RSA 2000 cA-2 s6;2004 cM-18.1 s18;2004 cP-44.1 s48 Notice to dependants 7(1) When an application is made for a grant of probate or administration, the applicant shall send a copy of the application and a notice pertaining to the rights of dependants under the Dependants Relief Act to (a) the spouse of the deceased, if the spouse is not the sole beneficiary under the will of the deceased or under the Intestate Succession Act and if the spouse resided in Canada at the date of the death of the deceased, (b) the adult interdependent partner of the deceased, if the adult interdependent partner is not the sole beneficiary under the will of the deceased or under the Intestate Succession Act and if the adult interdependent partner resided in Canada at the date of the death of the deceased, and (c) each child of the deceased who was an adult at the date of the death of the deceased and is unable by reason of physical disability to earn a livelihood and who resided in Canada at the date of the death of the deceased.
When an application is made for a grant of probate or administration, the applicant shall send a copy of the application and a notice pertaining to the rights of a spouse under the Matrimonial Property Act to the spouse of the deceased, if the spouse of the deceased is not the sole beneficiary under the will of the deceased or under the Intestate Succession Act.
A judge may by order dispense with the requirement that a copy of the application and notice be sent to a spouse under subsection (2) if the judge is satisfied that the spouse does not have a right to make a claim under the Matrimonial Property Act against the estate of the deceased.
When an application is made for a grant of probate or administration, the applicant shall send a copy of the application to (a) the Public Trustee, if the deceased is survived by a child who was a minor at the time of the deceased’s death, and Section 8 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 (b) the committee of the estate of a child of the deceased who was an adult at the time of the deceased’s death and is unable by reason of mental disability to earn a livelihood.
If the deceased is survived by a child who was an adult at the time of the deceased’s death and is unable by reason of mental disability to earn a livelihood but for whom a trustee has not been appointed, the judge may, having regard to the value of the estate, the circumstances of the child and the likelihood of success of an application made on the child’s behalf under the Dependants Relief Act, (a) direct that a grant for probate or administration in the deceased’s estate not be issued until a committee of the child’s estate has been appointed, and (b) direct that the applicant or some other person apply to have a trustee appointed for the child under the Adult Guardianship and Trusteeship Act.
A grant of probate or administration shall not be issued unless the judge is satisfied that the requirements of this section have been complied with except that the judge may waive the requirement to send a copy of the application or a notice to any person when it is shown to the judge’s satisfaction that the person could not be found after reasonable inquiry. RSA 2000 cA-2 s7;2002 cA-4.5 s14;2008 cA-4.2 s118 Procedure to Avoid Duplication of Grants Notice to Deputy Minister of Justice and Deputy Attorney General 8(1) When application is made for a grant, the clerk shall forthwith send to the Deputy Minister of Justice and Deputy Attorney General notice of the application showing (a) in the case of probate or administration, the name and description or occupation of the deceased, the date of the deceased’s death and the place of residence at the time of the deceased’s death, all as stated in the affidavits made in support of the application, (b) in the case of guardianship, the name, description or occupation and place of residence of the minor, (c) the name, address and description or occupation of the applicant, and (d) any other information prescribed by the Rules. 8
As soon as possible after receiving a notice under subsection (1), the Deputy Minister of Justice and Deputy Attorney General or a person authorized by that Deputy to do so shall send to the clerk a certificate stating whether, according to the records of that Department, (a) notice has been received of any other application or of a grant in respect of the same estate or minor, (b) there is on file in that Deputy’s office a caveat or a copy of a caveat in respect of the same estate or minor and that has not expired and has not been discharged or withdrawn, and (c) notice has been received in that Deputy’s office in respect of a will of the same deceased that was deposited during the deceased’s lifetime with a clerk of the court or with a clerk of the district court before July 12, 1967.
When the certificate under subsection (2) shows that there is on file in the office of the Deputy Minister of Justice and Deputy Attorney General a caveat or copy of a caveat that has not expired and has not been discharged or withdrawn, a copy of the caveat shall accompany the certificate sent to the clerk.
The certificate may be given by the Deputy Minister of Justice and Deputy Attorney General or by a person authorized by that Deputy to do so and shall be accepted by the court without proof of the signature or authority of the person making it.
When a grant is issued, the clerk shall forthwith send a notice of that fact to the Deputy Minister of Justice and Deputy Attorney General.
Records shall be kept in the Department of Justice of all notices sent under subsections (1) and (4). RSA 1980 cA-1 s8;1994 cG-8.5 ss90,91 Certificate for issue of grant
RSA 1980 cA-1 s9;1994 cG-8.5 s90 Procedure where more than one application 10(1) If it appears by the certificate under section 8(2) that 2 or more applications for a grant have been made in respect of the same estate or minor, the Deputy Minister of Justice and Deputy Attorney General or a person authorized by that Deputy for the purpose shall send notices to that effect to each of the clerks concerned.
The notices under subsection (1) on being received operate to stay the proceedings under the respective applications, and each clerk concerned shall notify accordingly the applicants whose applications are filed in the clerk’s office.
Any of the applicants may apply to the Court of Queen’s Bench for directions and the court shall inquire into the matter and give directions as to which application is to be proceeded with.
The Court of Queen’s Bench may order costs to be paid by any of the applicants or out of the estate and a copy of the order certified by the clerk of the Court of Queen’s Bench shall be filed with the Court of Queen’s Bench having jurisdiction, and on filing the order has the same force and effect as if the order were an order of the Court of Queen’s Bench.
The order of the court is final and conclusive and the clerk of the court shall transmit a certified copy of the order to each clerk in whose office the applications for grants were filed. RSA 2000 cA-2 s10;RSA 2000 c16(Supp) s39;2009 c53 s9 Caveats Caveat against issue of grant 11(1) Caveats against the issue of a grant may be filed with a clerk or in the office of the Deputy Minister of Justice and Deputy Attorney General.
If a caveat or withdrawal of a caveat is filed with a clerk, the clerk shall forthwith send a copy of it to the office of the Deputy Minister of Justice and Deputy Attorney General.
If a caveat or withdrawal of a caveat is filed in the office of the Deputy Minister of Justice and Deputy Attorney General after the sending of the certificate under section 8(2), the Deputy Minister of Justice and Deputy Attorney General or a person authorized by that Deputy for the purpose shall forthwith send a copy of the caveat or withdrawal to the clerk in whose office the application was filed. RSA 1980 cA-1 s11;1994 cG-8.5 s90 Particulars of caveat
(a) shall be signed by the caveator or by the caveator’s solicitor, (b) shall set out the name, residence and occupation of the caveator, the caveator’s address for service or that of the caveator’s solicitor, and full particulars of the caveator’s interest in the person or estate, and (c) shall be accompanied with an affidavit or statutory declaration verifying the statements in the caveat and showing that it is not entered for the purpose of delaying or embarrassing any person interested in the person or estate in respect of which it is made. RSA 1980 cA-1 s12 Effect of caveat
RSA 1980 cA-1 s13 Application after caveat
RSA 1980 cA-1 s14 Expiry of caveat 15(1) Unless it is sooner discharged or withdrawn, a caveat remains in force for 3 months from the date that it is filed or a shorter or longer period that may be ordered by a judge.
When a caveat has expired or has been discharged or withdrawn, no further caveat in respect of the same estate or minor shall be filed by or on behalf of the same caveator without the leave of a judge. RSA 1980 cA-1 s15 Section 16 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 Discharge of caveat
RSA 2000 cA-2 s16;2009 c53 s9 Notice to caveator
RSA 1980 cA-1 s17;1992 c21 s47 Effect of withdrawal or expiry of caveat
RSA 1980 cA-1 s18 Deceased Persons’ Estates Under $3000 Applications in small estates
(a) prepare, in accordance with the Rules, the application and any other papers necessary to lead to the grant, including a bond, if any, and (b) give on behalf of the applicant any notice required to be given by this or any other Act in connection with the application. RSA 1980 cA-1 s19;RSA 1980 c1(Supp) s2 Executors Excluded from Applying Executor renouncing probate
12 Section 21 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 cease except insofar as the renunciation expressly reserves the trusteeship and on the renunciation, any application for a grant shall be made and dealt with as if the person renouncing had not been named as an executor or trustee. RSA 1980 cA-1 s21 Death of executor
(a) survives the testator but dies without obtaining a grant of probate, or (b) is ordered to prove a will and fails to do so within the time limited by the order, the executor’s rights in respect of the executorship and any trusteeship under the will wholly cease and any application for a grant shall be made and dealt with as if the person so dying, refusing or not appearing had not been named as an executor or trustee. RSA 1980 cA-1 s22 Minor as sole executor
RSA 1980 cA-1 s23 Applications for Administration Persons entitled to apply 23(1) Subject to section 24, when a person dies intestate or the executor named in the person’s will is incompetent or unwilling to act, administration of the property of the deceased shall be granted in accordance with the Rules pertaining to priorities among applicants but (a) if more than one person claims the administration as being next of kin equal in degree of kindred to the deceased, or (b) if only one desires the administration as next of kin and there are more persons than one of equal kindred, administration may be granted to the one or more of the next of kin that the court thinks fit. 13
Subject to section 24, if a person (a) dies wholly intestate, or (b) dies leaving a will affecting property but without having appointed an executor of it or an executor willing and competent to act, and the persons entitled to administration nominate another person to be appointed as administrator of the property of the deceased, or any part of it, the right of the persons nominating to have administration granted to them passes to their nominee. RSA 1980 cA-1 s24 Grant in special case
(a) the property of a deceased person be forthwith administered, or (b) someone other than the executor or next of kin be appointed to administer the property of a deceased person, the court may, on application and on the notice, if any, that it may direct, issue a grant of administration to the Public Trustee or some other person it thinks fit and impose any limitations and restrictions on the grant that it sees fit. RSA 1980 cA-1 s25;1988 c31 s1 Interim administration by Public Trustee 25(1) When a person dies whether testate or intestate and the person’s real or personal property or both have not been taken possession of by the person’s executor or next of kin, the Public Trustee (a) may take possession of the property forthwith, and (b) may safely keep, preserve and protect the property.
The Public Trustee before the grant of probate to an executor or the issue of letters of administration, as the case may be, has the powers of an executor or administrator, except that the Public Trustee shall not sell property unless in the Public Trustee’s opinion the estate might suffer a loss if a sale is not effected. RSA 1980 cA-1 s26 Grant when litigation pending
(a) has all the rights and powers of a general administrator, other than the right of distributing the residue of the property, and (b) is subject to the immediate control and direction of the court, and the court may direct that the administrator shall receive out of the property of the deceased any reasonable remuneration that the court considers proper. RSA 1980 cA-1 s27 Temporary administration 27(1) If the next of kin, usually residing in Alberta and entitled to administration, is absent from Alberta, the court may grant temporary administration to some other person that the court thinks fit for a specified time or subject to revocation on the return of the next of kin to Alberta.
The administrator so appointed shall give whatever security the court directs and has all the rights and duties of a general administrator, but is subject to the immediate control of the court. RSA 1980 cA-1 s28 Special and limited grants 28(1) Subject to the Rules, the court may make a special or limited grant of administration of any kind permitted under the practice of courts in England having jurisdiction in testamentary matters and causes on any condition that the court thinks fit.
A grant of administration may be limited to the personal property of the deceased or part of it or the real property of the deceased or part of it, or otherwise, as the court thinks fit.
An application for a grant of limited administration shall show that every person entitled to share in the distribution of the property to be administered has consented to the application, has renounced or has been cited and has failed to appear, unless the court otherwise directs. 15
If limited administration is applied for, the limitation and any condition shall clearly appear in the oath of the administrator and the grant. RSA 1980 cA-1 s29 Resealing of Foreign Grants Resealing of foreign grants 29(1) In this section, (a) “foreign grant” means a grant of probate or administration or other document purporting to be of the same nature granted by a court in (i) a province or territory of Canada, (ii) the United Kingdom or any British possession, colony or dependency, or (iii) a member nation of the British Commonwealth; (b) “probate” includes letters of verification issued in the Province of Quebec.
A foreign grant may be resealed at the direction of the court and under the seal of the court on application made in accordance with the Rules and on resealing the foreign grant (a) is of the same effect in Alberta as if it were issued by the court, (b) is, as regards property in Alberta, subject to any order of the court to which any grant of the court is subject, and (c) is, as regards property in Alberta, subject to appeal in the same manner as any other grant of the court.
For the purposes of this section and the Rules, a duplicate or exemplification of a foreign grant sealed with the seal of the court that granted it or a copy of a foreign grant certified by or under the direction of the court that granted it is as effective as the original.
A foreign grant shall not be resealed under this section until (a) a certificate has been issued by the registrar, clerk or other officer of the court that issued the foreign grant that security has been given to that court in a sum sufficient to cover the property of the deceased in Alberta, and Section 30 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 (b) security has been given to the court in Alberta to cover the property of the deceased in Alberta as in the case of an application for an original grant, unless the court dispenses with that security. RSA 1980 cA-1 s30
Administration of Estates Generally Order to restrain intermeddling 30(1) At any time before the issue of a grant a person may apply to the court, on any notice that the judge may direct, for an order restraining any person from dealing or intermeddling with the property of a deceased person.
If the court is satisfied that the application was made in good faith for the preservation of the property, costs shall be in the discretion of the court and shall be paid by the estate or the intermeddler, or both, as the court thinks fit. RSA 2000 cA-2 s30;2009 c53 s9 Legal representative only to act
RSA 1980 cA-1 s32 Change in bond
RSA 1980 cA-1 s33 Proceedings on bond 33(1) A person interested in the estate of a deceased person or a minor may with leave of the court institute proceedings in the interested person’s own name on a bond without an assignment of it to the interested person. 17
The proceedings on the bond shall be made by application, and if the judge hearing the application is satisfied that the condition of the bond has been broken, the person who instituted the proceedings shall recover on it as trustee for all persons interested in the full amount recoverable in respect of a breach of the condition of the bond. RSA 2000 cA-2 s33;2009 c53 s9 Legal proceedings after grant revoked
RSA 1980 cA-1 s35 Acting under revoked grant 35(1) If a grant is revoked, a payment made in good faith to a legal representative under the grant before its revocation is a legal discharge to the extent of the payment to the person making it.
A person relying on a grant and making or permitting to be made any payment or transfer in good faith shall be indemnified and protected in so doing notwithstanding any defect or circumstances affecting the validity of the grant.
A conveyance of an estate or interest in property made by a legal representative in good faith and for an adequate consideration to a bona fide purchaser is valid notwithstanding a subsequent revocation or variation of the grant to the legal representative. RSA 1980 cA-1 s36 Grant made without jurisdiction
RSA 1980 cA-1 s37 Section 37 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 Distribution of Estates of Deceased Persons Distribution of estate 37(1) On complying with the provisions of the Rules regarding advertising for creditors and claimants, the legal representative is entitled to distribute the property of the deceased person having regard only to the claims of which the legal representative has then notice and the legal representative is not liable to any person of whose claim the legal representative does not have notice at the time of the distribution of the property or part of it in respect of any such property so distributed.
Nothing in subsection (1) prejudices the right of a creditor or claimant to follow the property or any part of it into the hands of a person who has received it. RSA 1980 cA-1 s38 Limitation of actions
RSA 1980 cA-1 s39;1999 c32 s11 Mortgage on estate property 39(1) When a person (a) dies possessed of, (b) dies entitled to, or (c) acting under a general power of appointment purports by the person’s will to dispose of, an interest in property that at the time of the person’s death is charged with the payment of money by way of mortgage and the deceased person has not by will, deed or other document signified a contrary intention, the interest so charged is, as between the different persons claiming through the deceased, liable primarily for the payment of the charge.
Each part of the interest referred to in subsection (1) shall according to its value bear a proportionate part of the charge on the whole of it.
A contrary intention shall not be deemed to be signified 19 (a) by a general direction for the payment of some or all debts of the testator out of the testator’s personal property or the testator’s residuary real and personal property or the testator’s residuary real property, or (b) by a charge of debts on that property, unless the contrary intention is further signified by words expressly or by necessary implication referring to all or some part of the charge mentioned in subsection (1).
Nothing in this section affects the right of a person entitled to the charge referred to in subsection (1) to obtain payment or satisfaction of it, either out of the other assets of the deceased or otherwise.
In this section, “mortgage” includes (a) a charge, whether equitable, statutory or of any other nature, and (b) a lien for unpaid purchase money. RSA 1980 cA-1 s40 Verification of claims 40(1) Every creditor or other person filing a claim against the estate of a deceased person shall, if required to do so by the legal representative, verify the creditor’s or other person’s claim in accordance with the procedures in the Rules.
In the case of a secured claim, the legal representative of the estate may either (a) consent to the right of the creditor or other person filing the claim to rank for the claim after deducting the value of the security specified in the declaration, or (b) require from the creditor or other person an assignment of the security at the value specified in the declaration, and when an assignment is made, the difference between the value at which the security is retained by the legal representative and the just amount of the gross claim is the amount for which the creditor or other person ranks for the creditor’s or other person’s claim.
When an assignment of security is required pursuant to subsection (2), the creditor or other person shall, on payment to the creditor or other person of the value of the security specified in the Section 41 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 declaration, together with interest to the date of payment if the indebtedness bears interest, assign the security to the legal representative.
Nothing in this section curtails, abridges or otherwise prejudicially affects any of the rights or remedies of a secured creditor until the legal representative of the estate has given notice that an assignment of the security is required and payment for it is tendered.
When the claim of a creditor or other person is based on a negotiable instrument on which the deceased is only indirectly or secondarily liable and that is not mature or exigible (a) the claim is deemed to be secured for the purposes of this Act, and (b) the creditor or other person shall put a value on the liability of the party primarily liable on the instrument as being the creditor’s or other person’s security for repayment of it, but after the maturity of the liability and its non-payment, the creditor or other person may amend and revalue the creditor’s or other person’s claim.
If a creditor or other person files with the legal representative of an estate a claim that is wholly or partly secured but fails to value the security, (a) a judge may, on application by the legal representative or any other person interested in the estate, order that unless a statutory declaration specifying the value of the security is filed with the legal representative within the time limited by the order, the claimant will be wholly barred of any right against the estate in respect of the claim or the part of it that is secured, and (b) if the order is not complied with, that claimant is wholly barred of any right against the estate in respect of the claim or the part of it that is secured. RSA 2000 cA-2 s40;2009 c53 s9 Deciding contested claims 41(1) When a claim is made against the estate of a deceased person or if the legal representative of the estate has notice of a claim, the legal representative may contest the claim in whole or in part and, if in part, stating what part, in accordance with the Rules. 21
If the claimant does not make an application in accordance with the Rules within 60 days after the receipt of a notice of contestation under subsection (1), the claimant’s claim is forever barred.
This section applies also to a claim not presently payable and for which, for that reason, an action for the recovery of it could not be brought, but if such a claim is established under this section, no proceedings shall be taken to enforce payment of it without the permission of a judge. RSA 1980 cA-1 s42;1992 c21 s47 Ranking of debts 42(1) If on the administration of the estate of a deceased person there is a deficiency of assets, (a) debts due to the Crown and to the legal representative of the deceased person, and (b) debts to others, including respectively debts by judgment or order, and other debts of record, debts by specialty, simple contract debts and any claims for damages that by statute are payable in like order of administration as simple contract debts, shall be paid proportionately and without any preference or priority of debts of one rank or nature over those of another.
Nothing in this section prejudices a lien existing during the lifetime of the debtor on any of the debtor’s real or personal estate.
If the legal representative pays more to a creditor or claimant than the amount to which the creditor or claimant is entitled under this section, the overpayment does not entitle any other creditor or claimant to recover more than the amount to which that creditor or claimant would be entitled if the overpayment had not been made. RSA 1980 cA-1 s43 Covenants, etc., in leases 43(1) When a legal representative liable as such to the rents, covenants or agreements contained in a lease or agreement for a lease granted or assigned to the deceased person whose estate is being administered (a) has satisfied all liabilities under the lease or agreement for a lease that have accrued due and been claimed up to the time of the assignment mentioned in clause (c), Section 44 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 (b) has set apart a sufficient fund to answer any future claim that might be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property leased, or agreed to be leased, although the period for laying out the sum might not have arrived, and (c) has assigned the lease or agreement for a lease to a purchaser of it, the legal representative may distribute the residuary estate of the deceased to and among the parties entitled to it without appropriating any part or any further part, as the case may be, of the estate of the deceased to meet any future liability under the lease or agreement for a lease.
The legal representative so distributing the residuary estate is not, after having assigned the lease or agreement for a lease and having when necessary set apart the fund pursuant to subsection (1)(b), personally liable in respect of any subsequent claim under the lease or agreement for a lease.
Nothing in this section prejudices the right of the lessor or those claiming under the lessor to follow the assets of the deceased into the hands of the person or persons to or among whom they might have been distributed. RSA 1980 cA-1 s44 Rents, etc., in conveyances 44(1) When a legal representative liable as such to the rents, covenants or agreements contained in a conveyance of rent charge, or agreement for such a conveyance, granted or assigned to or made and entered into with the deceased person whose estate is being administered (a) has satisfied all liabilities under the conveyance or agreement for a conveyance that have accrued due and been claimed up to the time of the conveyance mentioned in clause (c), (b) has set apart a sufficient fund to answer any future claim that might be made in respect of any fixed and ascertained sum covenanted or agreed by the grantee to be laid out on the property conveyed, or agreed to be conveyed, although the period for laying out the sum might not have arrived, and 23 Section 45 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 (c) has conveyed the property, or assigned the agreement for the conveyance, to a purchaser of it, the legal representative may distribute the residuary estate of the deceased to and among the parties entitled to it without appropriating any part or any further part, as the case may be, of the estate of the deceased to meet any future liability under the conveyance or agreement for conveyance.
The legal representative so distributing the residuary estate is not, after having made or executed the conveyance or assignment and having when necessary set apart the sufficient fund pursuant to subsection (1)(b), personally liable in respect of any subsequent claim under the conveyance or agreement for conveyance.
Nothing in this section prejudices the right of the grantor or those claiming under the grantor to follow the assets of the deceased into the hands of the person or persons to or among whom they might have been distributed. RSA 1980 cA-1 s45 Accounting Passing of accounts 45(1) The legal representative shall make an accounting before the court of the legal representative’s administration of the estate whenever the legal representative is ordered to do so by the court, either at the instance of the court or on the application of a person interested in the estate, a creditor or a surety for the due administration of the estate.
A legal representative may at any time apply to the court to make an accounting of the legal representative’s administration of the estate before the court. RSA 1980 cA-1 s46 Accounting by trustee under will
RSA 1980 cA-1 s47 Powers of court on passing of accounts 47(1) The court, on passing the accounts of the legal representative of an estate, may 24 Section 48 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 (a) enter into and make full inquiry and accounting of and concerning the whole property that the deceased or minor was or is possessed of or entitled to, and the administration and disbursement of that property, including the calling in of creditors and adjudicating on their claims, and for that purpose may take evidence and decide all disputed matters arising in the accounting, and (b) inquire into and adjudicate on a complaint or claim by a person interested in the taking of the accounts of misconduct, neglect or default on the part of the legal representative, and the court, on proof of the claim, may order that the legal representative be charged with any sum by way of damages or otherwise that it considers just, in the same manner as if the legal representative had received the sum.
The court may order the trial of an issue of a complaint or claim under subsection (1)(b), and may make all necessary directions for that trial.
If accounts submitted to the court are intricate or complicated and, in the opinion of the court, require expert investigation, the court may appoint an accountant or other skilled person to investigate and to assist it in auditing the accounts, and the costs of so doing shall be borne by the estate or by the person that the court directs. RSA 1980 cA-1 s48 Final passing of accounts
(a) order that an administrator or guardian be discharged, or (b) declare that an executor has fully and satisfactorily accounted to the date shown in the order. RSA 1980 cA-1 s49
General Rights and Liabilities of Executors and Administrators Distress for rent 49(1) The legal representative of a deceased lessor or landlord may distrain for the arrears of rent due to the lessor or landlord in the lessor’s or landlord’s lifetime in like manner as the lessor or landlord might have done if living.
The arrears may be distrained for at any time within 6 months after the determination of the term or lease and during the continuance of the possession of the tenant from whom the arrears become due, and the law relating to distress for rent is applicable to the distress so made. RSA 1980 cA-1 s50 Joint contractors, etc. 50(1) If any one or more joint contractors, obligors or partners die, the person interested in the contract, obligation or promise entered into by the joint contractors, obligors or partners may by action proceed against the legal representatives of the deceased contractor, obligor or partner in the same manner as if the contract, obligation or promise had been joint and several, notwithstanding that there may be another person liable under the contract, obligation or promise still living, and that an action is pending against that person.
The property and effects of shareholders of banks and of the shareholders or members of other corporations are not liable to a greater extent than they would have been if this section had not been passed. RSA 1980 cA-1 s51 Sale, etc., to satisfy debts, etc.
(a) charges the testator’s real property or a specific part of it with the payment of the testator’s debts or with the payment of a legacy or other specific sum of money and devises the property so charged to a trustee, and (b) does not make any express provision for the raising of the debts, legacy or sum of money out of the property, 26 Section 52 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 the trustee, notwithstanding any trusts actually declared by the testator, may raise the debts, legacy or money by a sale and absolute disposition by public auction or private contract of that real property or any part of it, or by a mortgage of it, or partly in one mode and partly in the other. RSA 1980 cA-1 s52 Extension of powers to persons in whom property vested
(a) to a person in whom the estate devised is for the time being vested by survivorship, descent or devise, or (b) to a person appointed under a power in the will or by the Court of Queen’s Bench to succeed to the trusteeship. RSA 2000 cA-2 s53; RSA 2000 c16(Supp) s39 Purchasers or mortgagees
RSA 1980 cA-1 s54 Execution of directions by executor
(a) there is in a will of a deceased person a direction whether express or implied to sell, dispose of, appoint, mortgage, encumber or lease real property, and (b) no person is by the will or otherwise appointed by the testator to execute and carry the direction into effect, the executor, if any, named in the will has power to and shall execute and carry into effect that direction to sell, dispose of, appoint, mortgage, encumber or lease that real property, and estate or interest in it, in as full, large and ample a manner and with the same legal effect as if the executor were appointed by the testator to execute and carry the direction into effect. RSA 1980 cA-1 s55 Sale, etc., by administrator
27 Section 56 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 (a) there is in a will of a deceased person a power to an executor in the will to sell, dispose of, appoint, mortgage, encumber or lease real property, or an estate or interest in it, whether the power is express or arises by implication, and (b) from any cause letters of administration with the will annexed have been granted to a person and that person has given any required security, that person has power to and shall exercise that power to sell, dispose of, appoint, mortgage, encumber or lease that real property, or estate or interest in it, in as full, large and ample a manner and with the same legal effect for all purposes as the executor might have done. RSA 1980 cA-1 s56 Sale, etc., by administrator with will annexed
(a) there is in a will of a deceased person a power to sell, dispose of, appoint, mortgage, encumber or lease real property, or an estate or interest in it, whether the power is express or arises by implication, and (b) no person is by the will or otherwise appointed by the testator to execute the power, and letters of administration with the will annexed have been granted to a person and that person has given any required security, that person has power to and shall exercise that power to sell, dispose of, appoint, mortgage, encumber or lease the real property, or estate or interest in it, in as full, large and ample a manner and with the same legal effect as if that person had been appointed by the testator to execute that power. RSA 1980 cA-1 s57 Conveyance by legal representative 57(1) When a person (a) has entered into a contract for the sale and conveyance of real property, or an estate or interest in it, and (b) has died intestate, or without providing by will for the conveyance of the real property, or estate or interest in it, to the person entitled to or to become entitled to the conveyance under the contract, 28 then, if the deceased would be liable to execute a conveyance if the deceased were alive, the legal representative of the estate of the deceased person shall make and give to the person entitled to it a conveyance of the property, or estate or interest in it, and of such nature as the deceased if living would be liable to give.
A conveyance made by a legal representative under subsection (1) is as valid and effectual as if the deceased were alive at the time of the making of it and had executed it, but does not have any further validity. RSA 1980 cA-1 s58 Duties and liabilities of legal representative
(a) would have been imposed on an executor or other person appointed by the testator to execute those acts, or (b) if there is no such executor or other person, would have been imposed by law or by the court. RSA 1980 cA-1 s59 Survivorship
RSA 1980 cA-1 s60 Application to Court for Advice Application to court for advice 60(1) A legal representative of an estate may apply for the opinion, advice or direction of a judge of the Court of Queen’s Bench on any question respecting the management or administration of the estate.
The legal representative acting on the opinion, advice or direction given by the judge is deemed, so far as regards the legal representative’s own responsibility, to have discharged the legal Section 61 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 representative’s duty as legal representative in respect of the subject-matter of the opinion, advice or direction.
Subsection (2) does not extend to indemnify a legal representative in respect of an act done in accordance with the opinion, advice or direction if the legal representative has been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion, advice or direction. RSA 2000 cA-2 s60;RSA 2000 c16(Supp) s39;2009 c53 s9 Remuneration and Fees Remuneration to legal representative 61(1) A judge may at any time by an order fix and give directions respecting the remuneration and compensation to be granted to a legal representative.
This section does not apply if the remuneration or compensation of a legal representative is fixed by the will. RSA 1980 cA-1 s62 Costs
(a) business transacted in the court, whether contentious or not, or any matter connected with it, or (b) business transacted or work done with respect to the estate, whether contentious or not, is subject to review and assessment under the Alberta Rules of Court. RSA 2000 cA-2 s62;2009 c53 s9 Preparation of application 63(1) No person other than the applicant or a barrister and solicitor acting for the applicant shall directly or indirectly prepare an application for a grant or any documents to be used in the application.
Subsection (1) does not apply in the case of an application prepared by the clerk under section 19. RSA 1980 cA-1 s64;RSA 1980 c1(Supp) s4 30 Section 64 ADMINISTRATION OF ESTATES ACT RSA 2000 Chapter A-2 Transitional 64(1) In this section, “previous Act” means the Administration of Estates Act as it read immediately before it was amended by the Adult Interdependent Relationships Act.
The previous Act continues to apply in cases of death occurring before this section comes into force.