Administering a
Deceased Estate
DUNNING PLACE
Administering a Deceased Estate
An executor appointed under a will is entitled to administer
an estate. If there is no will, the closest relative is entitled to
administer the estate.
The Public Guardian and Trustee (PGT) is a place of last
resort and becomes involved in administering estates when
there is no next of kin, the next of kin does not want to act,
or the family is in dispute over who should administer the
estate. It can take between three to four years to complete the
administration of an estate.
The PGT, as Official Administrator, will attend to funeral
arrangements for a deceased only when the deceased has no
known next-of-kin or where no next-of-kin will take or are
unable to take responsibility for these arrangements.
When the PGT has begun to act and is notified that someone
else is appointed by the Court as administrator, the Office will
prepare a report and hand the assets to the administrator.
All Acts, Regulations and Forms referred to in this booklet
can be found at our web site at www.justice.gov.sk.ca/pgt
Beneficiaries
The PGT, as administrator of an estate, is required to
identify and locate all beneficiaries of an estate. The Office
searches for information about the relatives of the deceased to
determine the beneficiaries.
The Intestate Succession Act along with The Wills Act, The Family
Property Act, and The Domestic Relations Act legislate who, in
succession, would be a beneficiary of a deceased estate.
Beneficiaries are verified by obtaining executed heirship
affidavits. Additional documentation to support the
determination of beneficiaries may be required and may
include birth, death, and marriage certificates, written
confirmation of adoption and DNA testing.
The Administration of Estates Act does not define a common
law spouse. Typically, the Office will require a person
claiming to be a common law spouse to obtain a Court
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Order declaring the person to be a spouse. Based on Court
decisions, some factors to consider when determining whether
or not a spousal relationship exists are:
• shelter – whether the parties lived under the same roof, and
the sleeping arrangements;
• sexual and personal behavior – such things as whether they
maintained an attitude of fidelity to each other, ate their
meals together, assisted each other in illness, gave each
other gifts, etc.;
• services – who performed the chores necessary to sustain
the household;
• social – whether they participated together in community
activities and how they conducted themselves around
extended family;
• societal – how the community viewed their relationship; and
• support (economic) – how their finances were arranged and
how they hold their property.
Legislation requires that, in certain circumstances, the estate
cannot be distributed for six months after Letters Probate or
Letters of Administration are obtained. These circumstances
include:
• dependants of the deceased may have a claim pursuant to
The Dependants’ Relief Act because the will did not make
adequate arrangements for their support. Dependents
include a legal, common law or same-sex spouse, children
under the age of 18 years; or children over the age of 18
years who by reason of physical or mental disability are not
able to support themselves; and
• a legal, common law or same-sex spouse who was not named
as the sole beneficiary of the estate may apply for a division
of the family property after the death of the other spouse.
It is necessary to confirm and locate all of the beneficiaries in an
estate before estate assets can be distributed. In some estates, it
is necessary to hire an heir locator to assist in the location of the
beneficiaries even though it takes considerable time.
Once the heir locator has indicated that he or she cannot
go further, then it is necessary to make a court application
directing our Office as to how to pay out the funds.
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Estate Assets - assets owned by the deceased
at date of death (Part I Assets)
The PGT, as administrator of an estate, is required to identify,
locate, secure, value and insure all assets of an estate.
The PGT will review the personal papers of the deceased,
write inquiry letters, conduct searches of Information Services
Corporation, Saskatchewan Government Insurance, and
publish a notice to creditors as required by The Administration
of Estates Act.
It is necessary to determine:
• Cash assets of an estate including funds held in banking
institutions, investment companies, insurance companies,
trust companies, pensions and benefits provided by
government agencies.
• Personal property including vehicles, farm equipment,
jewelry, firearms, household items, musical instruments,
electronic equipment, antiques and collectables.
• Real property owned by the estate. An investigation is
conducted to obtain an evaluation report from a land
appraiser, an Agrologist, a market evaluation from a real estate
agent, or a property assessment from civic/rural municipality.
Pending the sale or transfer of agricultural or residential
property, it may be advisable to lease or rent the property.
Under The Devolution of Real Property Act, a lease cannot be
for more than one year unless there is beneficiary consent.
Real property will be dealt with in one of the following
methods:
• Transferred to all beneficiaries as part of their distributive
share;
• Transferred to one beneficiary as part of his/her distributive
share;
• Transferred to a rural or civic municipality in lieu of
property tax arrears;
• Transferred to a mortgage holder;
• Sold to satisfy creditor claims;
• Sold at the request of all beneficiaries.
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If there are estate debts and insufficient funds to pay those
debts, then real property will be sold to pay those debts. In
these instances, the consent of the beneficiaries is not required.
If the estate is not insolvent and beneficiaries wish the land to
be sold, it should be transferred into their name and then they
are free to sell it. There will be cases where the beneficiaries
will request the PGT to attend to the sale of the property.
When the Office sells property, the following is required:
• written consent of all of the beneficiaries;
• Certificate of No Infants Interested, when there are no
minor beneficiaries (children under the age of 18);
• for minor beneficiaries, the following is required:
– consent from the legal guardian as children under the
age of 18 cannot give legal consent,
– an acknowledgement from each minor beneficiary
fourteen years of age or older, which indicates that he or
she has been advised of the particulars of the proposed
sale of real property and consents to the sale,
– consent to the transfer of the property must be obtained
from Children’s Services. This authorization document is
a requirement of Information Services Corporation (ISC).
In Saskatchewan when an estate has real property it must be
transmitted at ISC into the name of the administrator of the
estate. Afterwards, if the estate is not insolvent, the property can
then be transferred into the name of one or more beneficiary.
Part II Assets
Part II Assets include property jointly owned with the
deceased at date of death, assets with a named beneficiary, and
property outside Saskatchewan. Typically the PGT, as the
administrator of the estate, does not deal with these assets.
Estate Debts - debts owed by the deceased
at date of death
In estate administration, it is necessary to identify the debts of
the estate.
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The PGT will review the personal papers of the deceased,
make direct inquiries to family, friends, neighbours,
businesses and conduct Writ and Personal Property Registry
searches. In addition, a Notice to Creditors will be published
as required by The Administration of Estates Act. This will be
published in a newspaper located in the closest community to
where the deceased last resided.
In some instances, the estate of the deceased may be
insufficient to pay all the outstanding debts. The PGT, as
administrator of the estate, must ensure that the debts are
paid from the estate, to the extent possible, in accordance
with the relevant law.
Debts of the deceased must be paid before any of the gifts
provided for in the Will are given out to a beneficiary. Where
there are insufficient assets in the estate to pay all creditors,
generally, the debts of an insolvent estate are paid in the
following order:
1. Secured creditors are paid, to the extent of the value of the
asset over which they have security. If there is a deficiency,
i.e. the value of the asset is less than the debt owing,
the secured creditor will rank with the other unsecured
creditors with respect to the deficiency;
2. Reasonable funeral and testamentary expenses incurred by
the legal executor or administrator of the deceased;
3. The costs of administration of the estate, in the following
order:
a) the expenses and fees of the executor or administrator;
b) legal costs;
4. Debts that have legislative priority: for example, maintenance
for children or rent owing to a landlord or wages, salaries or
commissions owing to an employee of the deceased;
5. Debts owing pursuant to the Income Tax Act;
6. All other unsecured debtors, including claims of the
Crown in right of Canada or of any province that do not
have legislative priority, are then to be paid. If there are
insufficient funds, they are paid rateably.
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After the PGT has determined the beneficiaries of the
estate and the estate assets, an application for Letters of
Administration will be made to the Court. When the value
of the estate does not exceed $25,000, the PGT has the same
power and authority to administer the estate as if the Court
had granted Letters of Administration.
The Court application must also contain a schedule of assets
and that debts consisting of the following:
• Part I
– statement of property owned by the deceased at date of
death
• Part II - statement of property jointly owned with the
deceased at date of death
– assets with a named beneficiary
– property outside Saskatchewan
• Debts
– list of creditors as at date of death
Income Tax
The PGT, as administrator, is required to finalize the estate income
tax to avoid being liable for unpaid taxes, interest and penalties.
The Income Tax Act requires that every administrator, executor,
and trustee (the “responsible representative”) obtain a final
clearance certificate from Canada Revenue Agency (CRA) before
distributing to the beneficiaries any property under their control.
The responsible representative can be held personally liable if assets
are distributed prior to the receipt of the final clearance certificate.
The PGT will review the last five years of the deceased’s
income tax returns and financial information.
In some instances, it is necessary to file prior income tax returns,
which may take significant time to gather the information
required to complete the return.
The following is the process for estate income tax, unless the
estate is insolvent:
– T1 date of death return (for the period from January 1,
to the date of death)
– Annual T-3 Return(s) (to be filed annually for the year(s)
after the date of death)
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– If real property or other estate assets do not need to be
sold to pay estate debts, a Clearance Certificate to Date
of Death, or Partial Clearance, must be issued by CRA
before the assets can be distributed to beneficiaries.
– After all real property and estate assets are sold or
transferred to beneficiaries, all prior returns have been
filed and assessed, all tax has been paid a windup date
can be selected. At this time, final T3 income tax return
must be filed. It can take three to eight months to
receive a Notice of Assessment for this return.
– After the Notice of Assessment is received for the Final
T3 income tax return, an application will be made to
Canada Revenue Agency for a Final Clearance Certificate.
– It can take three to six months for the Final Clearance
Certificate to be issued. This clearance certificate covers
income tax liability up until the windup date.
– Until the Final Clearance Certificate has been received,
and all income tax owing has been paid, funds cannot be
distributed to beneficiaries.
– After the Final Clearance Certificate is issued, it may
be necessary to file a Final T3 return from the windup
date until the release date. If all of the beneficiaries
reside in Canada, it might be possible to allocate the
interest to the beneficiaries for this time period. If there
is a beneficiary that resides outside of Canada, an NR4
Return must be filed and the non-resident withholding
tax (Part XIII tax) must be submitted to CRA. An NR4
slip must be sent to the beneficiary.
If there are estate assets or estate funds available to be
distributed to the beneficiaries, the PGT, as administrator,
will provide each beneficiary with an estate accounting and
a release. The estate cannot be distributed until a release is
received from every beneficiary. If the PGT is not able to
obtain releases from all beneficiaries, an application will be
made to the Court to have the accounts passed.
Where a beneficiary is under the age of 18, the PGT
will obtain a signed release from the legal guardian. The
distributive share that is payable to the infant beneficiary is
then transferred to Children’s Services of the PGT to be held
in trust.
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Fees
The fee payable to the PGT for administering an estate, are
pursuant to the Regulations to The Administration of Estates
Act. A summary of our fees are as follows:
• the amount equal to or the greater of:
– $1500.00
• if the value of the gross assets of the estate is:
– $50,000 or less, 7% of that value
– between $50,000 and $100,000 - $3,500.00 plus $5%
of the value of the value in excess of $50,000.00
– more than $100,000, $6,000.00 plus 4% of the value in
excess of $100,000
• real estate fee for the sale of real property– minimum $100,
maximum $500
• income tax fee – $100 for the preparation of each income
tax return
• plus disbursements, legal costs and all out of pocket expenses.
This booklet is a summary and a guide based on the law. It is
not as comprehensive as the law itself. It is not legal advice.
If, after reading this booklet, you have questions or are
uncertain about how to interpret the information, you should
consult with a lawyer.
Contact Information
Public Guardian and Trustee of Saskatchewan
100 - 1871 Smith St.
REGINA, Saskatchewan S4P 4W4
Telephone: (306) 787-5424
Toll Free: 1-877-787-5424
Fax: (306) 787-5065
Email: pgt@gov.sk.ca
Web site: www.justice.gov.sk.ca/pgt
Office Hours:
Monday through Friday,
8:00 a.m. to 5:00 p.m.
(Closed for the noon hour and holidays)
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