Beneficiaries have certain rights and options when an estate is being distributed.
If there are no disputes about the estate, beneficiaries don’t generally need a lawyer. In some cases beneficiaries may wish to consult a lawyer before agreeing to a proposed distribution of the estate. If there is a dispute concerning the estate, beneficiaries may want to seek legal advice. The Executor or Administrator act for the estate, not the beneficiaries. When there is a conflict, each party may require independent legal advice.
Beneficiaries cannot demand to be told what the Will contains and a reading of the Will to the beneficiaries is optional. In some cases the Executor, Administrator or the lawyer for the estate will meet with the beneficiaries to discuss the Will. Although an Executor or Administrator does not have to show a beneficiary the Will, they are required to distribute the estate according to the Will and there are ways, as the estate progresses, to make sure this happens.
In some situations it may not be easy to find out if a deceased person left a Will and where the Will was kept. If you are not sure if the deceased had a Will or you cannot find it with their papers, you may want to check with any lawyer that did legal work for the deceased to see if the Will was left with the lawyer for safekeeping.
A Will may also have been left with a courthouse for safekeeping. To find out if the deceased did this you can search the Wills and Estates Registry by sending a letter with the deceased person's full name, last known place of residence and date of death. There is a fee for a search that must be sent in with the request.
If you think someone has the Will you can serve notice on that person to appear in Court. The Court can order them to produce the Will. If the person does not have the Will, they can be required to state under oath that the Will is not and was never in their possession. They can also be required to give any information they have about where the Will is located.
When there is no Will, The Intestate Succession Act, 2019 sets out how the estate will be distributed.
If there is doubt about whether a Will is valid, a request can be made to have it proved in solemn form. This means that a court will formally examine and determine the validity of a Will. If this request is allowed, the court will hear evidence from witnesses such as people involved in the preparation of the Will or medical experts. An interested party may make a Court application to have the court determine the validity of a Will if...
Even if a Will is properly made, there are circumstances where the distribution of property under the Will can be challenged by a dependant spouse or child. There are even situations where a Will can be challenged because the deceased did not provide for someone who looked after him or her with the understanding they would benefit from the estate. This could happen if, for example, a relative gave up their own home and occupation to live with an older or disabled person with the understanding that they would inherit part of the estate.
Challenging a Will can be a complex matter and you will likely require the advice of a lawyer if you want to challenge the validity of a Will.
It is the Executor's or Administrator's job to make sure that the property of the deceased is given to those named in the Will. An Executor or Administrator who does not distribute the property as set out in the Will may be responsible for money or property that was improperly distributed. There are ways of checking to make sure that the Executor or Administrator has distributed the estate according to the Will.
In many cases the Will must be probated with the Court before any property is distributed. This must be done if distributing the estate requires any land transfers or if probate is required by an institution or organization holding property of the deceased. Even when a Will is not probated, banks and other institutions may require any beneficiaries named in the Will to agree to the release of money or property.
A Will that has been probated in Saskatchewan will be filed in the Wills and Estates Registry. Anyone can search this registry by sending a request and payment to the Registry, as described above.
If the Executor does not file the Will for probate with the Court within 60 days of the person's death, any interested person can serve notice on the Executor to appear in Court and produce the Will. At that time the Executor will also be required to accept the responsibility of being the Executor or allow the person who served the notice or other interested individual to apply to be in charge of distributing the estate.
A person interested in the estate may apply to Court for an order requiring the accounts of the estate to be filed with the Court at any time if they allege that the person distributing the estate has been negligent or is wasting the estate. The accounts are the records of how the assets of the estate have been handled.
If an Executor or Administrator is not fulfilling their duties or is defrauding the estate a court application can be made to have them removed.
The Executor or Administrator is required by law to pass the accounts within two years of when Letters Probate or Letters of Administration were granted. Accounts also must be filed, even if two years have not passed, if the administration of the estate is complete or the Executor or Administrator wants to be discharged from their duties.
If the Executor or Administrator fails to pass the accounts when required, a beneficiary can serve a notice requiring them to be filed within 30 days. If the accounts are not filed within 30 days, a beneficiary can apply to the court for an order directing the Executor or Administrator to file the accounts.
If the administration of the estate is complete the accounts will include a proposed distribution. This distribution can be approved or, if a beneficiary objects to the proposed distribution, there can be a hearing on the matter. On the other hand, if all beneficiaries are willing to sign a release and they agree with the proposed distribution, the Executor or Administrator can ask the court to discharge them without passing the accounts. It is up to the individual beneficiaries to decide whether they will sign a release and agree to the proposed distribution. Beneficiaries can ask the Executor or Administrator for more information or for changes before agreeing to sign. If a beneficiary is not satisfied they can refuse to sign and then the accounts must be passed and ultimately the court can decide how the estate should be distributed.