1. What is a “Will”?

A Will is a legal document that explains what a person wants done with the things he/she owns (the estate) after he/she dies.

2. What is an “Estate”?

An Estate is everything owned by a person who is now deceased. It is the total of a person's property (including money), entitlements and obligations.

3. What is meant by “Probate”?

This is when a person dies with a Will.  This is issued to one or more of the executors named in a Will.

The procedure of going through Probate is governed by a provincial law called the Judicature Act, R.S.N.1990, c. J-4 and by Rule 56 of the Rules of the Supreme Court, 1986.

Judicature Act
Rule 56 – Probate, Administration, and Guardianship Rules

4. What is meant by “Administration”?

The term Administration refers to an Estate of a person who has died with or without a Will and when an executor, family member or other eligible person either is not named, does not wish to or is unable to carry out the administration of the Estate.

5. What if I do not have a “Will”?

If you do not have a Will, you can still administrate an Estate.  You will need to file a petition for Letters of Administration.

6. There are Four (4) types of administration, these include:

a) Petition for Letters of Administration – When a person dies without a Will the court may issue Letters of Administration. The court appoints an Administrator to take control of the deceased's property and distribute it according to law. Where there is no Will, the Estate will be distributed according to a provincial law called the Intestate Succession Act.

b) Petition for Letters of Administration, C.T.A. – If there is a Will but it does not name an Executor or the named Executor is unable or unwilling to act, the court can appoint an Administrator through a grant of Letters of Administration, C.T.A. C.T.A. is the abbreviation of the Latin word "cum testamento annexo", which means "with the Will annexed".

c) Petition for Letters of Administration, D.B.N. – When an Administrator of an Estate dies or becomes incapable of continuing with his or her duties prior to the fulfillment of the administration, Letters of Administration, D.B.N., should be filed. The grant involves the appointment of a person or institution to complete the administration of the Estate. D.B.N. is the abbreviation of the Latin words "de bonis non", which refers to "goods not administered”.

d) Petition for Letters of Administration, C.T.A., D.B.N. – When there is a Will but the Executor or Administrator C.T.A., dies or becomes incapacitated and therefore is unable to continue with his or her duties prior to the fulfillment of the administration and there is no other person to step in to that position according to the terms of any Will. The grant involves the appointment of a person or institution to complete the administration of the Estate. C.T.A. is the abbreviation of the Latin word "cum testamento annexo", which means "with the Will annexed". D.B.N. is the abbreviation of the Latin words "de bonis non", which refers to "goods not administered”.

7. What is Guardianship of a Minor?

This is issued for when a person, who is under the age of majority (19 years), for a variety of reasons, needs help to make decisions with respect to their personal financial affairs. The most common reason is when there is a civil action outstanding and a guardian has to be appointed or when a minor has received an inheritance from a Will, etc.

A grant of Guardianship (of the Estate) is applied for when a person, for a variety of reasons, needs help to make decisions with respect to their personal financial affairs. They may be under the age of majority, suffer from a mental illness or other medical condition, or have a diminished capacity because of advanced age.

Guardianship, minor (person)
A grant of Guardianship (of the person) is applied for when a person is not able to make decisions with respect to their health or medical care and treatment. They may be under the age of majority or may not be able to communicate their wishes to doctors or care givers, and this enables the guardian to speak on their behalf in this respect. It does not give the guardian authority to make decisions with respect to financial affair.

Guardianship (Person) is rare and occurs when there is no next of kin. Guardianship (Estate) is the most common.

Please note that in most instances the Public Trustee is appointed as Guardian in a Guardianship, Minor Estate. It is very rare for a parent or other next of kin to be appointed. As well, when the Public Trustee is appointed, the Guardianship Bond and Oath of Guardian documents are not required.

8. What is Guardianship of a Mentally Incompetent Person?

This is issued when a person is not able to make decisions with respect to their personal financial affairs or their health or medical care and treatment. They may not be able to communicate their wishes to doctors or care givers. They may suffer from a mental illness or other medical condition, or have a diminished capacity because of advanced age. An Affidavit from a medical doctor is required.

a. Guardianship, mentally disabled (Estate)
A grant of Guardianship (of the Estate) is applied for when a person, for a variety of reasons, needs help to make decisions with respect to their personal financial affairs. They may be under the age of majority, suffer from a mental illness or other medical condition, or have a diminished capacity because of advanced age.

b. Guardianship, mentally disabled (person)
A grant of Guardianship (of the person) is applied for when a person is not able to make decisions with respect to their health or medical care and treatment. They may be under the age of majority or may not be able to communicate their wishes to doctors or care givers, and this enables the guardian to speak on their behalf in this respect. It does not give the guardian authority to make decisions with respect to financial affair.

Guardianship (Person) is rare and occurs when there is no next of kin. Guardianship (Estate) is the most common.
 

9. How do I start the process of Probate and Administration?

To begin the process for Probate and Administration a notice of application must be filed. The notice will inform the court of the following pieces of information:

a) name of the deceased
b) deceased community of residence
c) deceased occupation
d) deceased date of death
e) name of the applicant
f) applicant service information (if self-represented)
g) solicitor information (if applicable)

10. How long does it take to Probate or Administrate an Estate?

Each Probate or administration case is unique. Your notice of application has to be posted for 5 days before you can file a petition for letters. The notice of application will lapse and be of no further force or effect 6 months from the date of its posting in the Registry of the Court unless within that time an application for Letters of Probate or administration, as the case may be, is filed in the Registry, or unless, within that time, a Caveat opposing such application is entered in the Registry.

11. Do I need a Lawyer?

There is no requirement to retain the services of a lawyer however, the advice of a lawyer is always recommended. Court officers are not lawyers but will assist you in your application procedurally only.

12. Is a copy of the Will required?

If a Will does exist, the original copy of the Will must be provided to the Supreme Court.

13. What does Executor/Executrix mean?

These are terms to describe the person named as being responsible for carrying out the instructions in a Will. If the person is male they are referred to as an “Executor”, or an “Executrix” if female.

14. What does Testator/Testatrix mean?

A testator is a person who makes a Will. If the person is male they are referred to as a “Testator”, or a “Testatrix” if female.

15. What is a Caveat?

A caveat is filed by any person who, for a variety of reasons, wishes to oppose the grant of Probate or Administration or wishes to be heard by the Court before a grant is made. Once a caveat has been filed by an individual, a grant cannot be issued by the Court without the individual being notified and given an opportunity to be heard. A caveat may be withdrawn by the person who filed it by filing a Withdrawal of Caveat.

If a caveat has been posted, in order to proceed with the application for a grant of Probate or Letters of Administration, the person filing the notice and application must commence a court proceeding within one year to either expunge the caveat or, where a grant of Probate is sought, to prove the validity of the will.

16. Why do I need a bond?

An Administration Bond is legal document held by the Court. It contains the name of the Administrator and two individuals who have promised to act as sureties. The bond which is signed acts as a guarantee that the appointed personal representative(s) will carry out their duties faithfully and honestly. The value of the bond may be forfeited if the personal representative fails to do so. The named sureties must own property which has a value of least half of the amount of the bond. Therefore, the sureties are guaranteeing that the administrator will do his/her duties honestly and faithfully, and are willing to forfeit money in the event that personal fails to do so.

Dispensing with a Bond is rare.  If an Applicant makes an application to dispense with the requirement of filing a bond, certain requirements have to be met.  An Applicant must indicate, by Affidavit, that there are no debts for which the Estate is or may be liable OR that adequate provision has been made for the payment of any unpaid debts.  An applicant must also clearly set out the sources of information available to support this claim.  If it still determined by a Judge that a Bond is an absolute necessity before the Estate file can be processed (due to various reasons), an Order will not be granted.  As such, a delay for an Applicant, in meeting this requirement, can certainly be a consequence when making such an application. 

17. What is meant by “Appointing the Public Trustee”?

Administration is the process used to appoint a legal representative, called an Administrator, of a deceased person where there is no Will or where the person's Will is not legally valid. Before an Administrator can begin to act for the deceased's Estate, a petition or application must be made to the Supreme Court of Newfoundland for Letters of Administration. If no person wishes to become the Administrator, a petition may also request that the Public Trustee be appointed as the Administrator. There are fees involved for this process. There are no exceptions.

18. Does an Estate have to go through Probate or Administration?

The type of assets in the Estate usually determine whether an Estate should be probated or administered and not the value of the Estate. If there are property transactions or access to financial institutions of the deceased, the Estate normally has to be probated or administered.

An executor who acts without a grant of probate may be liable if the Will he or she acted on is later proved to be invalid. A grant of probate acts as a guarantee that the Will is valid and that the executor has the rights and bears the responsibilities of distributing the Estate. The same applies for a person acting as administrator. Probate and Administration helps protect everyone involved in the process, including the personal representative. The personal representative may want to consider consulting with a lawyer to determine whether probate or administration is necessary.

19. How much does it cost to go through Probate or Administration?