executor wills

LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED PROBATE AND ADMINISTRATION INTERVIEW DATE DUE DATE DONE NA L LA INTRODUCTION Purpose and currency of checklist. This checklist is designed to be used in conjunction with the PROBATE AND ADMINISTRATION PROCEDURE checklist. It is written primarily from the perspective of a solicitor acting for an executor or administrator. This checklist is current to February 1, 2008. New developments: • Client Identification. New Law Society Rules regarding Client Identification and Verification are expected to come into effect on November 1, 2008. These new “know-your-client” Rules, generally based on the Federation of Law Societies of Canada Model Rule (http://www.flsc.ca/), represent a continuation of the legal profession’s initiatives against money laundering. All Canadian law societies are expected to adopt similar Rules in 2008. Adult Guardianship and Planning Statutes Amendment Act, 2007 (Bill 29). This legislation has received Royal Assent but has not yet been proclaimed in force. If the new Act comes into force it will repeal the Patients Property Act, R.S.B.C. 1996, c. 349, and strengthen and clarify representation agreements and enduring powers of attorney. The new Act will also amend the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, to include advance directives for health care. • Wills, Estates And Succession Act (Bill 28). This legislation has passed First Reading, and follows on detailed recommendations made by the British Columbia Law Institute in its report: Wills, Estates and Succession: A Modern Legal Framework. In the present form, Bill 28 repeals and replaces the Estate Administration Act, Probate Recognition Act, Wills Act, and Wills Variation Act. Passing of accounts. Rule 61(60) of the Supreme Court Rules requires that as part of an application for the passing of accounts and remuneration under Rule 61(58), the applicant must file an affidavit, in Form 136A, describing specified transactions and including specified calculations and information. Form 136A includes a prescribed format for estate accounts. Cash transactions. Law Society Rule 3-51.1 places restrictions on all cash transactions and regulates the circumstances in which a lawyer can accept $7500 or more in respect of any one client matter or transaction. Provincial sales tax on legal services. On May 25, 2007, the Supreme Court of Canada released its judgment in British Columbia (Attorney General) v. Christie, 2007 SCC 21, and overturned the BC Court of Appeal decision. Accordingly, lawyers remain obliged to collect Social Service Tax on legal services in accordance with the Social Service Tax Act, even in cases where the services are provided to low-income persons. Ministry of Small Business and Revenue Bulletin SST 061, available at www.sbr.gov.bc.ca/documents_library/bulletins/sst_061.pdf, provides basic information regarding taxable and non-taxable legal services. Office Copies. Effective January 1, 2007, the Supreme Court of British Columbia no longer issues office copies of disclosure statements in estate administration matters. The court will issue certified copies. Aboriginal law. The Indian Act (R.S.C. 1985, c. I-5) applies to wills made by Indians (as defined in the Indian Act) and to estates of deceased Indians who ordinarily resided on reserve land. The Minister of Indian Affairs is given broad powers over testamentary matters and causes (Indian Act, ss. 42-50). The formalities of execution of an Indian will are governed by the Indian Act (ss. 45-46) and the Indian Estates Regulations, C.R.C., c. 954 (s. 15); the Minister may accept a document as a will even if it does not comply with provincial laws of general • 5/08 G-4-1 PROBATE AND ADMINISTRATION INTERVIEW LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL DATE DUE DATE DONE LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED NA L LA application. It is good practice, however, to ensure an Indian will or testamentary document is executed in the presence of two witnesses, with those witnesses signing after the testator in the testator’s presence. Note that an Indian will is of no legal effect unless the Minister accepts it, and that property of a deceased Indian cannot be disposed of without approval (Indian Act, s. 45(2) and (3)). The Minister also has the power to void a will, in whole or in part, under certain circumstances (Indian Act, s. 46(1)(a)-(f)). If part or all of a will is declared void, intestacy provisions in the Indian Act will apply (Indian Act, ss. 46(2) and 48). Should an executor named in a will be deceased, refuse to act, or be incapable of acting, a new executor can be appointed by the Minister (Indian Act, s. 43; Indian Estates Regulations, s. 11). The Minister has similar powers in intestacy situations. The Minister is vested with exclusive jurisdiction over estates of mentally incompetent Indians (Indian Act, s. 51). A provincial probate court may be permitted to exercise jurisdiction if the Minister consents in writing (Indian Act, ss. 44 and 45(3)). Other statutory restrictions may apply to estates of deceased Indians. For example, a person who is “not entitled to reside on a reserve” may not acquire rights to possess or occupy land on that reserve under a will or on intestacy (Indian Act, s. 50), and no person may acquire cultural artifacts without consent (Indian Act, s. 91). As some Indian bands or First Nation entities have entered into treaties (e.g., the Nisga’a Final Agreement Act, S.B.C. 1999, c. 2) that may have governance, property, and other related implications, consider the status of an Indian instructing on a will and that of the band or First Nation in which a deceased Indian was a member. Further information on Aboriginal law issues is available on the “Aboriginal Practice Points” page of the CLEBC website (www.cle.bc.ca) and in other CLEBC publications. If acting with respect to an Indian will or estate, consider seeking advice from a lawyer with experience in Aboriginal law. Additional resources. For more detailed information about probate and estate administration practice, refer to the British Columbia Probate and Estate Administration Practice Manual, 2nd ed., looseleaf (CLEBC, 2007). CONTENTS 1. 2. Initial Contact Interview CHECKLIST 1. INITIAL CONTACT 1.1 Ensure that there is no conflict of interest. 1.2 If you or another solicitor with your firm is the executor, determine whether the will contains a charging clause enabling your firm to be retained and ensure that none of the partners in the firm have witnessed the will. 1.3 Arrange interview. Consider Law Society Rules regarding Client Identification and Verification. At the interview, obtain a legible copy of the client’s driver’s licence or other photo identification. This may be required by financial institutions for PIPEDA purposes and will also address identity theft concerns. 1.4 Give such preliminary advice as is appropriate; for example: .1 Responsibility for disposal of the deceased’s body. .2 Responsibility for funeral costs. G-4-2 5/08 LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED PROBATE AND ADMINISTRATION INTERVIEW DATE DUE DATE DONE NA L LA .3 Renunciation of executorship (see item 5.1 of the PROBATE AND ADMINISTRATION PROCEDURE checklist). .4 Loss of right to renounce executorship if the executor undertakes some of the responsibilities of an executor (e.g., taking control of the deceased’s estate). .5 Duty to keep accounts of assets, liabilities, receipts, and disbursements, and entitlement to be reimbursed for all proper and reasonable expenses. .6 Listing of contents of the deceased’s safety deposit box: (a) Client should contact the custodian (but note that the custodian will normally not allow removal of contents, except wills, until production of probate). (b) Personal representative or authorized agent must attend to list the box in the presence of the custodian. (c) Client should advise you so that you can be present at listing to check such things as: certificate numbers of securities, number and kind of shares, registered owner, dates of maturity, expiry date of warrants and conversion rights, transfer agents of stocks and bonds, unclipped coupons, date of issue of certificates. (Note: this is rarely done by the solicitor; a more practical alternative is to ask the client to obtain photocopies of any security documents at the time of the listing.) (d) Leave a copy of the listing with the custodian. .7 Contacting all financial institutions the deceased dealt with, informing of the death and requesting lists of assets and liabilities, including interest accrued to date of death. Consider effect of PIPA and PIPEDA. .8 Contacting all insurers, informing of the death and requesting claim forms and written confirmation of benefits. Client may instruct you to do this. 1.5 Advise client to take steps to safeguard the assets of the deceased. Consider using a standard form for this purpose. May include advice to: .1 Search for cash, securities, jewellery, and other valuables, and arrange for safekeeping. .2 Lock up the residence and advise the police if it is not under proper supervision. .3 Check the insurance on the deceased’s assets (e.g., motor vehicle, house, furniture), including expiry date, and notify the deceased’s insurance company (note that a 30-day vacancy limit applies in most policies insuring residential property). .4 Arrange for interim management of the deceased’s business. .5 Make banking arrangements. For example: arrange for accumulation of income due to the deceased at death or in the future; collect and bank any outstanding cheques (e.g., pensions, dividends, interest, salary). .6 Arrange for redirection of mail. .7 Check mortgages and agreements for sale; arrange for payment of instalments. 5/08 G-4-3 PROBATE AND ADMINISTRATION INTERVIEW LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL DATE DUE DATE DONE LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED NA L LA .8 Check leases and tenancies, arrange for payment of rent, and give notice if necessary. .9 Check utilities are paid to date. .10 Review cheques drawn by deceased before his death if there is any question of incapacity. .11 Check with employer regarding death benefits. .12 Notify and cancel pensions and annuities. .13 Conduct Land Title Office search to confirm ownership of properties. 1.6 Ask client to collect documents and information and bring them to the interview. Consider using a standard form for this purpose. Documents and information should include: .1 Original will and codicils. Do not unstaple the will for photocopying. See Supreme Court Rule 61(19). .2 Informal memoranda regarding funeral or disposition of assets, or giving information relevant to a possible application under the Wills Variation Act, R.S.B.C. 1996, c. 490. .3 Personal documents: deceased’s birth, marriage, and death certificates, social insurance number. .4 Bank books or statements, written up to death. .5 List of outstanding debts and other liabilities and funeral expenses. .6 Income tax returns for the past five years, account books, records of adjusted cost base of capital assets, and the name(s) of financial advisers. .7 Particulars of deceased and other parties: (a) Names, ages, addresses, domicile, residence, occupation, and citizenship of deceased, executor, beneficiaries, and persons entitled to apply under the Wills Variation Act. (b) Particulars of any minors or mental incompetents. (c) Particulars of any common law relationship. (d) Particulars of persons who would be entitled on an intestacy or a partial intestacy. (e) Birthplace and birthdate of deceased and his or her marital status. (f) Particulars of any ties to an Indian band or Aboriginal community, to see if Indian Act applies (see the introduction to this checklist). .8 Copy of any marriage agreement. .9 Legal description of real estate and interests therein; also value, charges, mortgages, agreements for sale. .10 Details regarding motor vehicles, boats, and other chattels, such as: (a) Motor vehicle description, year, serial number. (b) Boat registration or licence number. (c) Particulars of encumbrances. (d) Consider whether any assets require immediate attention. G-4-4 5/08 LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED PROBATE AND ADMINISTRATION INTERVIEW DATE DUE DATE DONE NA L LA (e) Values of above. .11 Stocks, bonds, term deposits. .12 Details regarding safety deposit box, including list of contents, if available (see item 1.4.6). .13 Book debts and promissory notes. .14 Debts and other liabilities. .15 Agreements or orders to which the deceased was a party, or under which he or she was liable, such as: divorce decree, nullity decree, maintenance order, Family Relations Act, R.S.B.C. 1996, c. 128 order, separation agreement, guarantee, buy-sell agreement, partnership agreement, lease, employment contract. .16 Financial statements of businesses and private companies in which deceased was interested. .17 Annuities, pensions and death benefits such as: CPP, Old Age Security pension, pension plan, RRSP, RRIF, or deferred profit sharing plan. .18 Insurance on the deceased’s life, including any insurance held with a credit card company and accident insurance where applicable. Also, claim forms; written confirmation of benefits, including dividends and loans; name of designated beneficiary, if any. .19 Insurance owned by deceased on lives of others. 1.7 Arrange to attend listing of safety deposit box (see item 1.4.6), if requested. 1.8 Conduct a will search by applying to the Vital Statistics Agency (Wills Act, R.S.B.C. 1996, c. 489, s. 36, and Supreme Court Rule 61(31) and (32)). The search must refer to all names proposed to appear in the grant of probate (i.e., name used in will, legal name, and name appearing on land title documents). Note that a search may be conducted through BC OnLine (see www.bconline.gov.bc.ca). 2. INTERVIEW 2.1 Confirm with client the terms of your retainer, including calculation of your account, method and timing of payment, and conditions upon which you undertake to act, and the division of responsibility between the executor and lawyer. Prepare and send a retainer letter confirming the preceding. 2.2 Review will and advise client regarding the following matters: .1 Date. Ensure that the most recent Wills Act applies by reason of the date the will was made or the date of death (Wills Act, s. 44). .2 Validity. Determine whether the Wills Act applies (see ss. 39 and 40; otherwise consult the law of the relevant jurisdiction and consider getting legal advice in that jurisdiction). If the Wills Act applies, check that: (a) The will is in writing (Wills Act, s. 3). (b) The will is signed at the end by the testator or in his or her name by another person, in his or her presence and by his or her direction (Wills Act, ss. 4(a) and 6). 5/08 G-4-5 PROBATE AND ADMINISTRATION INTERVIEW LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL DATE DUE DATE DONE LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED NA L LA (c) The signature was made or acknowledged by the testator in the presence of two or more witnesses present at the same time (Wills Act, s. 4(b)); except that where the testator was on active service as a member of the armed forces of Canada or an ally, or was a mariner or seaman at sea or in the course of a voyage, attestation is not required unless the will is signed by another person at the testator’s direction, in which case one witness is required (Wills Act, s. 5). (d) Two or more witnesses subscribed the will in the presence of the testator (Wills Act, s. 4(c)); except as set out in paragraph (c) above. (e) The testator was at least 19, unless he or she was or had been married, was on active service as member of armed forces of Canada or an ally, or was a mariner or seaman at sea or in the course of a voyage (Wills Act, s. 7, and Age of Majority Act, R.S.B.C. 1996, c. 7, s. 1(4)). (f) If no attestation clause, an affidavit as to due execution must be obtained from one of the subscribing witnesses (Supreme Court Rule 61(7)). .3 Codicil, attachments, or documents. Ensure that you have them all. .4 Check that the will is still in force, and that it has not been revoked by: (a) Subsequent marriage; except where the will contains a declaration that it is made in contemplation of that particular marriage, or is made in the exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor, administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate (Wills Act, ss. 14(1)(a) and 15). (b) A later will made in accordance with the Act (Wills Act, s. 14(1)(b)). Check for revocation clause. (c) A declaration executed in accordance with the Act showing an intention to revoke (Wills Act, s. 14(1)(c)). (d) Destruction of the will by the testator, or by some person in the testator’s presence and by the testator’s direction, with the intention of revoking the will (Wills Act, s. 14(1)(d)) (there is a rebuttable presumption that a will last known to have been in the hands of the testator but which cannot be found at the testator’s death has been destroyed with this intention). .5 If the will or a part of it has been revoked, check whether there has been a revival by a will or codicil made in accordance with the Wills Act showing an intention to revive the will or a part of it (Wills Act, s. 18). .6 Check that alterations made after execution are valid (i.e., the whole will has been re-executed or the alterations have been signed by the testator and two witnesses in the margin or near the alteration, or at the end of or opposite to a memorandum referring to the alteration and written in some part of the will; Wills Act, s. 17) (alterations are presumed to be made after execution, in the absence of contrary evidence, and blanks are presumed to be completed before execution). G-4-6 5/08 LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED PROBATE AND ADMINISTRATION INTERVIEW DATE DUE DATE DONE NA L LA .7 Check that erasures and obliterations are valid (i.e., capable of being proved to have existed at the time of execution, properly executed and attested, or rendered valid by re-execution of the will or the subsequent execution of a codicil) (if the erased or obliterated words can be ascertained on inspection and there is no evidence as to the time when the erasure or obliteration was made, the words will form part of the probate (Supreme Court Rule 61(15)). .8 Check that there is a proper attestation clause. .9 Check whether there is any gift to an attesting witness or his or her spouse. If so, check whether the gift is valid (i.e., there were more than 2 witnesses or it was validated by a later codicil not witnessed by the original witness or his or her spouse) (the witness can prove execution of the will and can act as executor (Wills Act, s. 11)). .10 If there has been a judicial separation, divorce, or declaration of nullity as regards the testator’s marriage, after the will was made but before his or her death, check whether a gift or appointment to his or her spouse is still valid (i.e., that the will indicates that revocation is not to occur) (otherwise, the Wills Act, s. 16 provides that the will takes effect as if the spouse had predeceased the testator). .11 Check whether there is a gift to issue or siblings who have predeceased the testator, and consult the provisions of the Wills Act, s. 21 and s. 29 to determine whether the gift has lapsed. .12 If no one is named as executor, check whether some person is instructed by the will to perform some duties of the executor, such that the person may apply for probate as an “executor according to the tenor of the will”. .13 Check whether the will devises or bequeaths property to an “heir” or “next of kin” of any person and, if so, consult Wills Act, s. 25. .14 Check whether the will contains the words “die without issue”, “die without leaving issue”, “have no issue”, or other similar words, and, if so, consult Wills Act, s. 26. .15 In construing a devise of land, consult Wills Act, ss. 22, 23, 24 and, where there is a mortgage, s. 30. .16 In construing a devise of personal property, consult Wills Act, s. 23. .17 In construing a devise to a trustee, consult Wills Act, ss. 27 and 28. .18 Note that any undistributed assets go on intestacy and the named executor is trustee (Wills Act, s. 31). .19 Note that lapsed or void specific gifts are included in the residue (Wills Act, s. 21). 2.3 Advise regarding intestacy, where there is no will or where the will does not dispose of the entire estate (for spouse and children, see Estate Administration Act, R.S.B.C. 1996, c. 122, ss. 81-99 and Interpretation Act, R.S.B.C. 1996, c. 238; note that the definition of spouse in the Estate Administration Act provides common law spouses the same general rights on intestacy as legally married spouses where such individuals have lived together for at least two years in a marriage-like relationship). 5/08 G-4-7 PROBATE AND ADMINISTRATION INTERVIEW LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL DATE DUE DATE DONE LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED NA L LA 2.4 Review the other documents and information collected by client, giving advice where appropriate. Your review should include the following matters: .1 Check the accuracy of the death certificate. If there is an error, advise the registrar of deaths (Vital Statistics Agency). .2 Check income tax information. Find out when the last return was filed. See if prior income tax returns disclose the existence of additional assets. .3 Check claims for annuities, pensions (including CPP) and insurance, and voluntary payments by the deceased’s employer (e.g., death benefits). Ensure that all required notices have been given and appropriate claims have been made. .4 Review liabilities: (a) Check dates when they are due. (b) Discuss payment arrangements. (c) Advise client regarding the liability of the estate for obligations incurred by the deceased under a court order, separation agreement or other contract. .5 Review shareholders’ agreements and option agreements for time limitations. .6 If there are assets outside of British Columbia, consider whether it is necessary to get legal advice in the other jurisdiction. .7 Consider issues relating to probate taxes (e.g., which assets are subject to the taxes and which are not). Advise client as to how registry fees are calculated (Probate Fee Act, S.B.C. 1999, c. 4). 2.5 Collect full particulars of the deceased and the estate. Arrange for any additional information to be obtained by you or your client. 2.6 Advise regarding the devolution of assets not passing by will or intestacy, such as: .1 Joint tenancies. .2 Life insurance, noting: (a) That a designation in a will is ineffective as against a designation made later than the will (Insurance Act, R.S.B.C. 1996, c. 226, s. 50(2)). (b) The difference between revocable and irrevocable designations (Insurance Act, ss. 48, 49,). (c) That the insured may designate a successor to own the policy, in which case it will not form part of the estate (Insurance Act, s. 57). (d) The rule applicable when the insured and the beneficiary die virtually simultaneously (Insurance Act, s. 72). .3 Pension plans and registered retirement savings plans (see Law and Equity Act, R.S.B.C. 1996, c. 253, ss. 46 and 49, and note that these sections do not apply to plans to which the Insurance Act applies; see also Pension Benefits Standards Act, R.S.B.C. 1996, c. 352, s. 34, which deals with preretirement survivor benefits. Also note s. 34(12) G-4-8 5/08 LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED PROBATE AND ADMINISTRATION INTERVIEW DATE DUE DATE DONE NA L LA which provides that s. 34 does not apply where a spouse is already receiving a share under Part 5 or Part 6 of the FRA). If the will contains a designation of a person as a beneficiary under a plan, ensure that such designation is permitted by the terms of the plan. .4 Community property, e.g., where deceased was domiciled or married in a jurisdiction where the laws provided for community of property between spouses (consider whether it is necessary to obtain legal advice in that jurisdiction). .5 “Family assets” under the Family Relations Act, which may be a special case similar to community property. If the property division provisions of the FRA were triggered between the deceased and his or her spouse before the deceased’s death, there may be a problem in determining the extent of the deceased’s interest in property in his or her name and in property in the spouse’s name; the obligations of the executor are unclear and it may be advisable not to proceed without either the consent of the other party or a court order. .6 Donationes mortis causa (gifts made in expectation of imminent death and conditionally upon it occurring). .7 Special powers of appointment. .8 Statutory benefits, e.g., survivor’s benefits under Canada Pension Plan, R.S.C. 1985, c. C-8; spouse’s entitlement to unpaid wages (Estate Administration Act, ss. 120-126, as amended). 2.7 Advise with respect to who is entitled to administer the estate: .1 Where no one is willing and competent to administer the estate, advise of the option of having the official administrator do so. .2 Where the will names an executor, but that person does not wish to act, advise of the option of renunciation (see items 1.4.3 and 1.4.4). .3 Where more than one executor is named in the will and not all are willing to take out the grant at that time, the executors who wish to take out the grant may do so, reserving the right to the others to apply at a later date. .4 Where the deceased died intestate, letters of administration may be granted to: (a) The widow(er) or one or more of the next of kin (Estate Administration Act, s. 6); renunciation and/or consent of all with a prior or equal right to the grant will be required (Rule 61(20)). (b) Another person, where there are special circumstances: this grant may involve limitations, conditions, and the requirement that the administrator give security (Estate Administration Act, s. 7). .5 Where there is a will but no executor (e.g., no executor is appointed in the will, the executor predeceased the testator or died without proving, the executor renounced or has been cited and has not appeared, the appointment of the executor is void for uncertainty, the executor is a minor or incompetent, or the executor’s appointment is revoked by the Wills Act, s. 16(2)), administration with the will annexed may be granted to another and the order of priority is usually: residuary legatees/devisees, specific legatees/devisees, then persons entitled on intestacy. 5/08 G-4-9 PROBATE AND ADMINISTRATION INTERVIEW LAW SOCIETY OF BRITISH COLUMBIA PRACTICE CHECKLISTS MANUAL DATE DUE DATE DONE LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary ACTION TO BE CONSIDERED NA L LA .6 Where a person entitled to administration resides outside British Columbia, administration, or administration with will annexed, may be granted to the person or the person’s attorney acting under a power of attorney (Supreme Court Rule 61(23)). 2.8 Advise a prospective administrator that the court may require a bond unless all beneficiaries and creditors are sui juris and consent (Estate Administration Act, ss. 16-19, Supreme Court Rule 61(25), (26), and (27)). 2.9 Discuss the duties and powers of an executor or administrator. 2.10 Where the deceased was sole remaining executor with probate of any unadministered estates, advise that on obtaining probate of the deceased’s will, the deceased’s executor will become the executor by representation of those estates. 2.11 Discuss the provisions of the Wills Variation Act and the restrictions on distributing any part of the estate within six months from the date that probate issues. Note: once the six-month period has expired, it may be prudent in some circumstances to check all registries to see if a writ has been filed but not served. Advise that a common-law spouse can now claim under the Act, provided that he or she comes within the definition of “spouse” in s. 1 of the Act. 2.12 Obtain instructions. 2.13 Open file: note any limitation periods that may apply, place checklist in file, make entries in diary and “BF” systems. 2.14 Send a letter to your client confirming the retainer, setting out the manner in which you will determine your fee for services, setting the conditions under which you have agreed to act, and summarizing the points discussed. 2.15 Complete the PROBATE AND ADMINISTRATION PROCEDURE checklist. G-4-10 5/08