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WILLS AND ESTATES

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Estate Administration and Intestate Succession (Dying Without A Will)

In this section:

If a person dies without a will, then they are considered to have died “intestate”. In this case, their estate will be distributed according to the Intestate Succession Act. Intestate succession may not be what a person had wanted, so it is important for people to consider making a will if their wishes do not align with the Intestate Succession Act.

The Intestate Succession Act lists how a person’s estate will be distributed when they die without a will based on their family members. For example, if a person dies without a will and they were married with one child, their spouse and child will have an equal 50/50 interest in the intestate person’s estate. However, if the deceased intestate person had 2 or more children, their spouse will only have a one-third interest in the estate. The other two thirds will be equally shared among the children, regardless of how many children there are.

If a person had no married spouse, or any children, but their parents are still alive, then the intestate person’s parents will have an equal 50/50 interest in the intestate person’s estate. If there is only one surviving parent, then the surviving parent will have interest in the entire estate.

The Intestate Succession Act also considers other situations where a person has no married spouse, children, or living parents. In these situations the intestate person’s brothers and sisters will receive an equal interest in the estate. If they had siblings who predeceased them, and have no living married spouse, children, parents, or siblings, then their nephew(s) and niece(s) will have an equal interest in the estate.

Additionally, if a person does have a will, but has not provided for what will happen with something that they own at their time of death, then the Intestate Succession Act will apply to any unaccounted for items.

Are Estranged Family Members Entitled To Part or All of An Estate?

Yes, the Intestate Succession Act does not distinguish between family members who are estranged or not estranged from a person who dies without a will.

Although someone may have become estranged to their parent, sibling, uncle, or otherwise, unless a person makes a will that determines how their estate will be distributed upon death, the Intestate Succession Act applies.

Are Children Born After Someone Dies Entitled To Part or All of Their Estate?

Yes, children born after a person has died can be entitled to part or all of an estate.

Section 12 of the Intestate Succession Act states that:

“Descendants and relatives of the intestate, begotten before the death of the intestate but born after, shall inherit as if they had been born in the lifetime of the intestate and had survived the intestate.”

A child born after an Intestate person’s death will have the same rights as if they were born during the lifetime of the deceased person.

Who Handles An Intestate Person's Estate?

Any person of the age of majority who is a resident of Newfoundland and Labrador can handle an intestate person’s estate. This is usually done through a court application to the Supreme Court of Newfoundland and Labrador (General Division).

A person, or persons, appointed by the Supreme Court of Newfoundland and Labrador (General Division) are known as administrators. They are responsible for administering an estate, including filing appropriate taxes, paying debts, and distributing a person’s estate according to the Intestate Succession Act. For more information on applying to court, please visit the Supreme Court of Newfoundland and Labrador’s website here: https://court.nl.ca/supreme/general/wills.html#Administration

Should I Make A Will To Avoid Dying Intestate?

Making a will provides certainty as to who will inherit under a person’s estate. The Intestate Succession Act provides additional certainty when a will is not signed. Although it is not mandatory to make a will, it can have additional benefits. If you are uncertain as to whether or not you should make a will, you should speak to a lawyer to determine what is best for your situation.

We strongly recommend consulting with a lawyer about making a will, probating an estate, or administering an estate of a person who has died without a will. Our  Lawyer Referral Service offers the opportunity to consult with a lawyer referral service for 30 minutes for $40.00 (tax included). There is no obligation for the client or the lawyer to go beyond this 30 minute consultation. However, it is a good way to get some basic legal advice and guidance in estate planning. For more information, please contact us Monday-Friday 8:30AM – 4:00PM (NT) at 1-888-660-7788 (Toll Free), either (709) 722-2643 (St. John’s area),  1-888-660-7788 (Toll Free) or by email at info@publiclegalinfo.com. You may also contact our Happy Valley-Goose Bay office at (709) 896-5235 or at labrador@publiclegalinfo.com

Applying for a Grant of Letters of Administration

This is issued when the deceased has not made a will. A person applying for Letters of Administration must be living in Newfoundland and Labrador.

Read More

Notice of Application

This is form 56.04A and contains the following:

  • Name of the deceased;
  • The community were the deceased lived;
  • Deceased occupation;
  • Deceased date of death;
  • Name of the Applicant;
  • Address for service and phone number of Applicant (if self-represented);
  • Address and phone number of lawyer (if represented by a lawyer);
  • Dated and signed by the applicant or their lawyer.

The Notice of Application will be invalid 6 months after it’s posted unless the Application for Probate is made within that time period, or if a caveat has been entered and is still in effect.

After the 5-day notice period, if there were no caveats filed and no previous grant of probate has been made, you can proceed with the Application.

Petition for Administration

This is form 56.05A. The Petition for Administration provides important information including information about the Applicant, deceased, beneficiaries, and the will. This Petition must be signed by the Applicant or the Applicant’s lawyer. It includes the following information:

  • The name of the petitioner;
  • The community the petitioner is living in;
  • The province of the petitioner;
  • The full name of the deceased as well as any other names the deceased was known by;
  • The marital status of the deceased;
  • Occupation of the deceased (or retired of deceased was retired);
  • The date and place of death of the deceased;
  • The names and addresses of every person entitled to a share in the estate and their ages;
  • The names and address of other parties in Newfoundland and Labrador with an equal or greater right to apply for the grant (see rule 56.02 for who has priority to apply for letters of administration);
  • A statement that there were no previous letters of administration issued by the Court.

Consents

These consents are signed by persons who have an equal or greater right to apply for letters of administration. They are stating that they agree to the applicant applying to be administrator over the estate. This consent is form 56.06 found on the website.

Affidavit

The affidavit is found in form 56.  This affidavit verifies the fact the petitioner has personal knowledge of the facts in the petition. This must be sworn or affirmed and witnessed by a Lawyer, Notary, Justice of the Peace or a Commissioner of Oaths.

Inventory

The inventory is found in form 56.10A.  This is for property and assets located in Newfoundland and Labrador and will be used to set the amount of administration fees charged and the amount of the bond. It should:

  • Be marked as an exhibit and initialed by the petitioner and person witnessing the petitioner’s signature.

Administration Bond

In most cases, the petitioner must provide a bond with two sureties as security for the value of the estate. The Court may also accept the bond of a licensed insurer instead of a personal bond and two sureties. This is to ensure that the administrator of the estate will carry out the duties of administrator correctly and will pay all debts out of the estate according to the law. The bond will be in form 56.21A and include:

  • A personal bond;
  • Two sureties who:
    • Must be at least 19 age
    • Resident of Newfoundland and Labrador
    • Possess real or personal property equal to ½ of the amount of the bond.

An applicant may apply to the Court to dispense with the bond in certain circumstances such as  if the administrator is the sole beneficiary of the estate. An affidavit would have to be filed and is found on the Supreme Court website and states that:

  • The estate has no debts; or
  • The Applicant has made adequate provision for the payment of debts and details of that provision:
    • Oath of Administrator
      The Oath of Administrator contains an oath stating that the administrator will administer the estate to the best of their ability. It is form 56.33C and includes the following:

      • The deceased died intestate (without a will):
      • The administrator will faithfully administer the estate by:
      • Paying legitimate debts;
      • Distributing the remainder of the estate according to law.
      • The administrator will provide an accurate and full inventory of the estate;
      • The administrator will provide a fair and accurate accounting of the estate when required by law to do so;
      • A statement as to the value of the deceased’s death at the time of their death.
    • Draft Order of Letters of Administration
      Once all documents are reviewed by a judge and are in order, Letters of Administration will be granted giving authority to the administrator. The application must include a draft order so that the judge can sign it if granted.  This is form 56.33F and will confirm the applicant’s authority and duties as an administrator.

Applying for Letters of Administration C.T.A

This is issued when the deceased has a will but there is no executor named or the executor is unable or unwilling to apply for the grant. A person applying for Letters of Administration must be living in Newfoundland and Labrador.

Read More

Notice of Application

This is form 56.04A and contains the following:

  • Name of the deceased;
  • The community were the deceased lived;
  • Deceased occupation;
  • Deceased date of death;
  • Name of the Applicant;
  • Address for service and phone number of Applicant (if self-represented);
  • Address and phone number of lawyer (if represented by a lawyer)

Dated and signed by the applicant or their lawyer.

The Notice of Application will be invalid 6 months after it’s posted unless the Application for Probate is made within that time period, or if a caveat has been entered and is still in effect.

After the 5-day notice period, if there were no caveats filed and no previous grant of probate or administration have been made, you can proceed with the Application.

Petition for Administration

This is form 56.05A. The Petition for Administration provides important information including information about the Applicant, deceased, beneficiaries, and the will. This Petition must be signed by the Applicant or the Applicant’s lawyer. It includes the following information:

  • The name of the petitioner;
  • The community the petitioner is living in;
  • The full name of the deceased as well as any other names the deceased was known by;
  • The marital status of the deceased;
  • Occupation of the deceased (or retired if deceased was retired);
  • The date and place of death of the deceased;
  • Statement that the deceased was at least 17 at time of execution of the will;
  • That the deceased did not marry after execution of the will or that there was a declaration that the will was made in contemplation of that marriage;
  • That the witnesses of the will were not beneficiaries or spouses of beneficiaries in the will;
  • The names, addresses and ages  of every beneficiary named in the will;
  • The names and address of other parties in Newfoundland and Labrador with an equal or greater right to apply for the grant (see rule 56.02 for who has priority to apply foe letters of administration);
  • A statement as to why the grant is being sought;
  • A statement as to whether the witnesses to the will are beneficiaries or not (or spouses of a beneficiary;
  • A statement that there were no previous letters of administration or grant of probate issued.

Consents

These consents are signed by persons who have an equal or greater right to apply for letters of administration. They are stating that they agree to the applicant applying to be administrator over the estate. This consent is form 56.06 found on the website.

Renunciation of Probate

If the executor is named and is unwilling or unable to be the executor, they must sign a renunciation of probate stating that they have not done anything with the estate and that they will not do anything with the estate and will not interfere with the administration of the estate. This is found on the Supreme Court website.

Proof of Will

This is found in form 56.11A. It is required as proof that the will is valid. A witness who was present at the time the will was signed will have to complete the Proof of Will.

If there are any codicils to the will, a proof of codicil must be signed as well.

The Proof of Will must include:

  • Name, place of residence, occupation of the witness to the will;
  • Name of the second witness of the will;
  • That the witnesses believed that the deceased was of sound mind when they executed the will.

If the deceased was blind or used their mark (instead of a signature), or did not fully understand the language in which the will was written:

  • Use form 56.11A (Proof of Will (Marksman).
  • The affidavit must state that the will was fully explained to the deceased and that they understood fully what they were signing.

If a Proof of Will can’t be obtained from the witnesses to the will:

  • An affidavit must be provided by someone else who was present when the will was signed.

If a Proof of Will can’t be provided by a witness or by someone else who was present at the time of the execution of the will, the affidavit must:

  • State no Proof of Will can be provided from a witness or person present at the time of execution;
  • Provide evidence of the handwriting of the deceased and the signing witnesses, or
  • Provide other evidence that would support the presumption that the will is valid.

If the Will is a holograph will (an unwitnessed will, signed and written wholly in the handwriting of the deceased), the Proof of Will should be:

  • An Affidavit following form 56.11B signed by someone who either:
  • Was present at the time of the execution of the will, or
  • Knew the handwriting of the deceased well enough to verify the handwriting in the will is the handwriting of the deceased.
  • The affidavit must state that the writing in the will is, in the belief of the person making the affidavit, the writing of the deceased.

Note: A judge may require proof in another form to satisfy the Court that the will is written and signed in the hand of the deceased

Will

The original will must be included in the application. It should:

  • Be marked as an exhibit to the Proof of Will  and initialled by the petitioner and person witnessing the petitioner’s signature.
  • The back of the will must be signed by the petitioner, witnesses to the petitioner’s signature, the person completing the Proof of Will and the witness to the Proof of Will.

Inventory

The inventory is found in form 56.10A. This is for property and assets located in Newfoundland and Labrador and will be used to set the amount of probate fees charged and the amount of the bond. It should:

  • Be marked as an exhibit and initialled by the petitioner and person witnessing the petitioner’s signature.

Administration Bond

In most cases, the petitioner must provide a bond with two sureties as security for the value of the estate. The Court may also accept the bond of a licensed insurer instead of a personal bond and two sureties. This is to ensure that the administrator of the estate will carry out the duties of administrator correctly and will pay all debts out of the estate according to the law. The bond will be in form 56.21A and include:

  •  A personal bond;
  •  Two sureties who:
  • Must be at least 19 age
  • Resident of Newfoundland and Labrador
  • Possess real or personal property equal to ½ of the amount of the bond.

An applicant may apply to the Court to dispense with the bond in certain circumstances such as  if the administrator is the sole beneficiary of the estate. An affidavit would have to be filed and is found on the Supreme Court website and states that:

  • The estate has no debts; or
  • The Applicant has made adequate provision for the payment of debts and details of that provision:
    • Affidavit
      The affidavit is found in form 56.  This affidavit verifies the fact the petitioner has personal knowledge of the facts in the petition. This must be sworn or affirmed and witnessed by a Lawyer, Notary, Justice of the Peace or a Commissioner of Oaths.
    • Oath of Administrator
      The Oath of Administrator contains an oath stating that the administrator will administer the estate to the best of their ability. It is form 56.33D and includes the following:

      • The deceased died with a will;
      • The administrator will faithfully administer the estate by:
      • Paying legitimate debts;
      • Distributing the remainder of the estate according to law.
      • The administrator will provide an accurate and full inventory of the estate;
      • The administrator will provide a fair and accurate accounting of the estate when required by law to do so;
      • A Statement as to the value of the deceased’s death at the time of their death.
    • Draft Order of Letters of Administration
      Once all documents are reviewed by a judge and are in order, Letters of Administration will be granted giving authority to the administrator. The application must include a draft order so that the judge can sign it if granted. This is form 56.33G and will confirm the applicant’s authority and duties as an administrator.

Applying for Letters of Administration, C.T.A., D.B.N.

This is issued when the deceased has a will but the executor or administrator C.T.A. dies or becomes incapacitated and cannot continue their duties after a grant is made but before the estate is completed. A person applying for Letters of Administration must be living in Newfoundland and Labrador.

Read More

Notice of Application

This is form 56.04A and contains the following:

  • Name of the deceased;
  • The community were the deceased lived;
  • Deceased occupation;
  • Deceased date of death;
  • Name of the Applicant;
  • Address for service and phone number of Applicant (if self-represented);
  • Address and phone number of lawyer (if represented by a lawyer)
  • Dated and signed by the applicant or their lawyer.

The Notice of Application will be invalid 6 months after it’s posted unless the Application for Probate is made within that time period, or if a caveat has been entered and is still in effect.

After the 5-day notice period, if there were no caveats filed and no previous grant of probate has been made, you can proceed with the Application.

Petition for Administration

This is form 56.05A. The Petition for Administration provides important information including information about the Applicant, deceased, beneficiaries, and the will. This Petition must be signed by the Applicant or the Applicant’s lawyer. It includes the following information:

  • The name of the petitioner;
  • The community the petitioner is living in;
  • The full name of the deceased as well as any other names the deceased was known by;
  • The marital status of the deceased;
  • Occupation of the deceased (or retired of deceased was retired);
  • The date and place of death of the deceased;
  • Statement that the deceased was at least 17 at time of execution of the will;
  • That the deceased did not marry after execution of the will or that there was a declaration that the will was made in contemplation of that marriage;
  • That the witnesses of the will were not beneficiaries or spouses of beneficiaries in the will.
  • The names, addresses and ages  of every beneficiary named in the will.
  • The names and address of other parties in Newfoundland and Labrador with an equal or greater right to apply for the grant (see rule 56.02 for who has priority to apply for letters of administration)
  • A statement as to why the grant is being sought.
  • A statement as to whether the witnesses to the will are beneficiaries or not (or spouses of a beneficiary).
  • A statement that there was no previous letters of administration or grant of probate issued.

Consents

These consents are signed by persons who have an equal or greater right to apply for letters of administration. They are stating that they agree to the applicant applying to be administrator over the estate. This consent is form 56.06 found on the website.

Renunciation of Probate

If the executor is named and is unwilling or unable to be the executor, they must sign a renunciation of probate stating that they have not done anything with the estate and that they will not do anything with the estate and will not interfere with the administration of the estate. This is found on the supreme Court website.

Certified Copy of the Previous Grant of Probate or Letters of Administration

Proof of Will

This is found in form 56.11A. It is required as proof that the will is valid. A witness who was present at the time the will was signed will have to complete the Proof of Will.

If there are any codicils to the will, a proof of codicil must be signed as well.

The Proof of Will must include:

  • Name, place of residence, occupation of the witness to the will;
  • Name of the second witness of the will;
  • That the witnesses believed that the deceased was of sound mind when they executed the will.

If the deceased was blind or used their mark (instead of a signature), or did not fully understand the language in which the will was written:

  • Use form 56.11A (Proof of Will (Marksman).
  • The affidavit must state that the will was fully explained to the deceased and that they understood fully what they were signing.

If a Proof of Will can’t be obtained from the witnesses to the will:

  • An affidavit must be provided by someone else who was present when the will was signed.

If a Proof of Will can’t be provided by a witness or by someone else who was present at the time of the execution of the will, the affidavit must:

  • State no Proof of Will can be provided from a witness or person present at the time of execution;
  • Provide evidence of the handwriting of the deceased and the signing witnesses, or:
  • Provide other evidence that would support the presumption that the will is valid.

If the Will is a holograph will (an unwitnessed will, signed and written wholly in the handwriting of the deceased), the Proof of Will should be:

  • An Affidavit following form 56.11B signed by someone who either
  • Was present at the time of the execution of the will, or
  • Knew the handwriting of the deceased well enough to verify the handwriting in the will is the handwriting of the deceased.
  • The affidavit must state that the writing in the will is, in the belief of the person making the affidavit, the writing of the deceased.

Note: A judge may require proof in another form to satisfy the Court that the will is written and signed in the hand of the deceased

Certified Copy of Will

The original will must be included in the application. It should:

  • Marked as an exhibit to the Proof of Will and initialed by the petitioner and person witnessing the  petitioner’s signature.
  • The back of the will must be signed by the petitioner, witnesses to the petitioner’s signature, the person completing the proof of will and the witness to the proof of will

Inventory

The inventory is found in form 56.10A.  This is for property and assets located in Newfoundland and Labrador and will be used to set the amount of probate fees charged and the amount of the bond. It should:

  • Be marked as an exhibit and initialed by the petitioner and person witnessing the petitioner’s signature.

Administration Bond

In most cases, the petitioner must provide a bond with two sureties as security for the value of the estate. The Court may also accept the bond of a licensed insurer instead of a personal bond and two sureties. This is to ensure that the administrator of the estate will carry out the duties of administrator correctly and will pay all debts out of the estate according to the law. The bond will be in form 56.21A and include:

  • A personal bond;
  • Two sureties who:
  • Must be at least 19 age
  • Resident of Newfoundland and Labrador
  • Possess real or personal property equal to ½ of the amount of the bond.

An applicant may apply to the Court to dispense with the bond in certain circumstances such as  if the administrator is the sole beneficiary of the estate. An affidavit would have to be filed and is found on the Supreme Court website and states that:

  • The estate has no debts; or
  • The Applicant has made adequate provision for the payment of debts and details of that provision:
    • Affidavit
      The affidavit is found in form 56.  This affidavit verifies the fact the petitioner has personal knowledge of the facts in the petition. This must be sworn or affirmed and witnessed by a Lawyer, Notary, Justice of the Peace or a Commissioner of Oaths.
    • Oath of Administrator
      The Oath of Administrator contains an oath stating that the administrator will administer the estate to the best of their ability. It is form 56.33D and includes the following:

      • The deceased died with a will:
      • The executor will faithfully administer the estate by:
      • Paying legitimate debts;
      • Distributing the remainder of the estate according to law.
      • The administrator will provide an accurate and full inventory of the estate;
      • The administrator will provide a fair and accurate accounting of the estate when required by law to do so;
      • A Statement as to the value of the deceased’s death at the time of their death.
    • Draft Order of Letters of Administration
      Once all documents are reviewed by a judge and are in order, Letters of Administration will be granted giving authority to the administrator. The application must include a draft order so that the judge can sign it if granted.  This is form 56.33D and will confirm the applicant’s authority and duties as an administrator.

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