Who Should Administer an Estate When There’s No Will Appointing a Personal Representative?

Leslie Taylor

The Estate Administration Act, SA 2014, C E-12.5 at section 13(1)(b) provides direction on the priority of persons to administer an estate where there is no will appointing a personal representative as follows, in descending order of priority:

1. The surviving spouse or surviving adult interdependent partner;
2. A child of the deceased person;
3. A grandchild of the deceased person;
4. A descendant of the deceased person other than a child or grandchild;
5. A parent of the deceased person;
6. A brother or sister of the deceased person;
7. A child of the deceased person’s brother or sister if the child is a beneficiary under the intestacy;
8. The next of kin of the deceased person determined in accordance with sections 67 and 68 of the Wills and Succession Act who are beneficiaries under the intestacy and who are not otherwise referred to in the list of priority;
9. A person who has an interest in the estate because of a relationship with the deceased person;
10. A claimant;
11. The Crown in right of Alberta.

Where two or more persons of equal priority apply to administer an estate the Estate Administration Act directs further at section 13(2) that preference is to be given to a resident of Alberta, or in the case of an application by both the surviving spouse and surviving adult interdependent partner (subsection (i) above), to the person who lived with the deceased immediately or most recently before the deceased person’s death.

If priority to administer an estate cannot be resolved pursuant to the above sections of the Estate Administration Act, section 13(3) permits the Court to grant the authority to administer the estate to one or more persons of equal priority, as the Court considers appropriate.

The issue of who should administer an estate as between three persons of equal priority was addressed in the Alberta Court of King’s Bench decision of Klein Estate (Re), 2013 ABQB 631 (CanLII) [NOTE: This decision pre-dates the introduction of the 2014 version of the Estate Administration Act (referenced above) however the criteria for determining the person of equal priority best suited to administer an estate are likely still relevant].

In Klein Estate, three adult children applied to administer the estate of their mother who passed without a will. The Court confirmed that all three were in equal position as before the law to administer the estate and that none were prepared to renounce. The Court noted the three siblings were named as co-executors of their father’s estate previously and that administration of the father’s estate did not go well with significant disputes arising.

In considering the evidence presented, the Court considered the following four criteria:

1. The potential for effective administration, including the character, competence and organization of the proposed administrator.
2. The potential for efficient estate administration, including the time available, proximity to estate assets, risk of delay and whether the person takes initiative or is a procrastinator.
3. The proposed administrator’s desire to undertake the task.
4. The proposed administrator’s motive for undertaking the task.

The Court ultimately chose one of the three siblings as administrator of the estate, primarily for her greater availability and lower risk of delay and in consideration of the lack of rigour/detail of an alternate sibling in previously administering the father’s estate.

Although the Court in appointing one sibling as administrator sought to achieve effective and efficient estate administration, that was not the result. In fact, the siblings would continue to squabble over the management of their mother’s estate for the next eight years with various applications, including a failed attempt to remove the sibling appointed as administer of the estate and more recently an argument over a $99.25 deposit into an estate account, see: Klein (Re), 2021 ABQB 488 and Klein (Re), 2021 ABQB 687. While this matter seemingly started as an application for a grant of administration as between siblings of equal priority, Justice Grasser in Klein (Re), 2021 ABQB 488 commented that it was obvious that the siblings were in driven by long-seated animosities which pre-dated the death of their mother, and the outcome of which was a “sad reality” where in an estate worth close to $300,000 resulted in the three beneficiaries receiving a only little over $60,000 each with some other expenses and the remainder eaten up by legal fees.