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ESTATE LAW

Upon the death of someone, an estate or trust is created, and how that estate is handled is largely determined by the Last Will and Testament of the deceased. If they died intestate (without a Will), the laws of the province where the deceased was domiciled (or held property) will govern.

Testate (with a Will)
A valid Will is usually a typewritten document, prepared by a solicitor, and dated and signed by the person making the Will (referred to as the testator or testatrix) and signed by two witnesses who sign in front of the testator. However, a handwritten or holographic Will can also be a legal document. Further, there can be additions or amendments to the Will, referred to as Codicils. As much as a Will is a standard document, each Will is also unique and so each Will is reviewed by a solicitor to determine what is required to administer it.

The advantage to having a Will is that you ensure your estate is distributed as you wish, that you appoint someone to carry out your wishes (referred to as your executor or executrix), and that your executor has the power to act immediately.

Intestate (without a Will)
If you die without a Will, there are laws governing how your estate will be distributed and who may apply to carry out the administration of your estate, but you need to wait until that person's appointment has been confirmed by a court (referred to as the administrator or administratrix).

If you live in Saskatchewan and die without a Will, your estate will be distributed as follows:

  • If you leave a spouse but no children - all of your estate goes to your spouse

  • If you leave a spouse and 1 child - first $100,000.00 to spouse, remainder split equally between spouse and child

  • If you leave a spouse and 2 or more children - first $100,000.00 to spouse, next 1/3 to spouse and 2/3 split equally between children

  • If you leave only children, and no spouse - your estate is divided equally among children (children of a pre-deceased child would share equally in what would have been their parent's share)

If you leave no children or spouse:

  • To father and mother, or survivor

  • To brothers and sisters (children of pre-deceased brother or sister would share equally in what would have been their parent's share)

  • To nieces and nephew

  • If no heirs, all goes to the provincial crown. The person who has the right to apply to administer your estate has the same degree of right as they are related to you (ie: first your spouse, then your children, then your parents, then your brothers and sisters)

Probate
Probate is an application to the court to prove the Will. A Will does not always have to be probated. It depends on what type of assets the estate has. For example:

  • If real property (land or mines and minerals) is owned by deceased, the estate must be probated

  • The banks and credit unions have varying limits as to when they will require probate. These limits vary from $20,000.00 to $100,000.00. Other factors are who the beneficiaries are and whether there is a Will. The banks may accept a Bond of Indemnity in lieu of probate

  • Canada Savings Bonds and Saskatchewan Savings Bonds usually require probate for any amount over $20,000.00 but this can vary too, depending on the beneficiaries

  • Share Certificates and GICs with companies other than a chartered bank, no matter the amount, usually must be probated

 

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How long does it take to administer an Estate?
Again, this depends on what type of assets there are. The first thing done by an executor/administrator is to make a list of estate assets and their values. From that list they then contact the various asset holders to see what is required to deal with that asset. If probate is required, documents are prepared so that an application is made to the court to grant it. Once probate issues, the executor begins distributing the specific bequests or gifts as outlined in the Will, and if the Will simply provides for a division of the residue or remainder among the beneficiaries, the assets are usually liquidated so that it can easily be distributed to the beneficiaries.

However, a final distribution will not be made until all accounts are paid, the required tax returns are filed and paid, a Clearance Certificate is obtained from Revenue Canada, an accounting is presented to the beneficiaries detailing the handling of the estate assets, and approval of that accounting is requested by the executor from all beneficiaries.

The tax work is usually what takes the longest to complete. Information must first be gathered to complete the Return. Once submitted, it takes about one to three months to be processed. After the Notice of Assessment issues, a Clearance Certificate must be obtained and this usually takes an additional four to six months. Until that Clearance is received, the executor is personally liable for any unpaid tax liability.

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