Newfoundland and Labrador

In Newfoundland and Labrador all probate matters go to the Supreme Court of Newfoundland and
Labrador (General Division). The executor applies for letters probate; where there is no will,
or the named executor will not act, the court grants letters of administration. Banks, the
registry of deeds and investment firms generally will not release or transfer assets without it.

What gets filed

The application is made by petition, and it is more document-heavy than in some provinces:
- The original will, with an affidavit of execution from a witness.
- A petition setting out the applicant's entitlement and the family circumstances.
- An inventory of the estate's assets and their date-of-death values.
- Proof of death, and notice to those entitled.

Probate fees

Fees are charged on the value of the estate under the Services Charges Act, on top of filing
costs. What counts toward that value has itself been litigated, so take the current rate and the
current basis of calculation from the court rather than from an older summary. The fee is paid from
the estate.

What passes outside the estate

Property held jointly with right of survivorship, and registered plans or life insurance with a
named living beneficiary, generally pass outside the estate and do not need the grant. In an estate
made up mostly of those, a grant may not be needed at all.

Before distributing

Collect the assets, pay the debts and taxes, and obtain the Canada Revenue Agency clearance
certificate. Distributing before it arrives leaves the executor personally liable for tax the
estate still owes.

Under the Wills Act, a will in Newfoundland and Labrador must be in writing, signed by the
testator at its end, and signed by two witnesses present when the testator signs. A holograph
will — wholly in the testator's own handwriting and signed by them — is valid with no witnesses.

Holograph wills: a stopgap, not a plan

The province will admit one to probate. It will not rescue the missing residue clause, the
unnamed alternate executor, or the gift of a boat that was sold in 2019. Given that the Supreme
Court requires a petition and inventory anyway, an ambiguous homemade will tends to turn a routine
application into a contested one.

The witness who inherits

A gift to a witness, or to a witness's spouse, fails while the rest of the will stands. Use two
neutral witnesses with nothing to gain.

Age and capacity

The general rule is 17 or older in this province — younger than most of Canada, and worth
confirming against the current Act — with capacity judged at the time of signing.

Marriage, separation and divorce

Relationship changes affect how a will operates, and the Family Law Act gives a surviving spouse
rights that sit alongside it. Have the will reviewed after a marriage, a separation or a divorce
rather than assuming it still does what you meant.

Practical points

• Name an alternate executor.
• Review after any death, birth, property purchase, or move.
• Say where the original is kept and tell the executor. A copy will not obtain a grant.

With no will, the Intestate Succession Act decides who inherits and the court appoints an
administrator.

Yes. An executor in Newfoundland and Labrador may be paid for administering the estate.

The standard

The Trustee Act entitles the executor to compensation that is adequate and fair for the
services actually rendered, subject to the court's approval and to the maximums the Act sets. There
is no simple tariff you can apply and be done with. The customary starting point in practice is a
percentage of the capital of the estate plus a percentage of the income collected — commonly quoted
as up to five per cent of each — with the total then tested for whether it is actually reasonable
given the size of the estate, the time spent, the responsibility, the skill required, the complexity
and the results.

How it gets approved

Compensation is either consented to in writing by all the beneficiaries, or approved by the
Supreme Court when the executor passes accounts. Get the consent in writing before taking it. In a
province where the application already goes in by petition with a full inventory, the court has a
clear picture of the estate — the compensation figure will be read against it.

Where consent cannot be given

If a beneficiary is a minor or cannot manage their affairs, expect to pass accounts formally.

If the will fixes a figure

The will governs, provided the executor accepts on those terms. A legacy to the executor may be
meant in place of a fee — read the clause.

Tax

Compensation is taxable income; an inheritance is not. Where the executor is also a beneficiary,
taking a larger share instead of a fee is often better after tax. Ask an accountant first.

An executor in Newfoundland and Labrador is reimbursed out of the estate for the reasonable
out-of-pocket costs of administering it, separately from any compensation for their time.

Normally claimable

• Funeral, burial or cremation, and a reception in proportion to the estate.
• Probate fees under the Services Charges Act, court filing fees, and certified death
  certificates.
• Legal fees for preparing the petition and inventory, and accounting fees for the final T1 and any
  T3 trust return.
• Registry of deeds searches, transfers and registrations.
• Appraisals of real property, cabins, boats and fishing gear, vehicles, jewellery and collections.
• Carrying costs on estate property until it sells: insurance, property tax, utilities, security,
  maintenance and snow clearing.
• Cleaning, clearing, storing, moving and shipping the contents of a residence.
• Travel on estate business at a reasonable rate. In this province that can mean long drives, ferry
  crossings and occasionally flights to reach property or beneficiaries.
• Postage, couriers, bank charges and bond premiums where a bond is required.

Normally not claimable

• The executor's lost wages, meals near home, or personal costs — compensation covers those.
• Costs incurred for one beneficiary's convenience rather than for the estate.
• Improvements to a property beyond preparing it for sale as it stands.
• Anything without a receipt.

The rule that decides it

Open an estate bank account as soon as the grant issues and run everything through it, and keep a
dated log of time, mileage and disbursements from the first week. The inventory filed with the
petition sets a baseline the court and the beneficiaries will measure the accounts against.

Most estates in this province are administered by a family member, and that is usually right. A
trust company or a lawyer acting as executor earns its cost in particular circumstances.

Consider a professional when

• The estate holds an operating business, a fishing enterprise with licences and quota, or rental
  property that has to keep going while the estate is settled. Licences in particular do not
  transfer the way ordinary property does.
• There is conflict among the beneficiaries, or a will challenge looks likely.
• A beneficiary is a minor or an adult who cannot manage money, so a trust runs for years.
• The named executor lives outside the province or outside Canada. Given how many families here
  have members working elsewhere, this is common — and a non-resident executor may be required to
  post a bond, with real tax consequences besides.
• Assets sit in more than one province or country.
• The obvious candidate is grieving, elderly, unwell, or does not want the job.

What it costs

Trust companies charge a negotiated percentage, often with a minimum fee that makes small estates
uneconomic. Ask for the fee schedule in writing before appointing one.

Middle options

• Appoint a family member and let them retain a lawyer and an accountant, paid by the estate.
  Given the petition-and-inventory requirement here, most family executors do exactly this.
• Appoint a family member jointly with a trust company.
• Name a professional as the alternate.

An executor who does not want the job can renounce, but only before intermeddling in the estate.