Legal & Personal Representative Fees

PART 1

PERSONAL REPRESENTATIVES’ COMPENSATION

Determination

1(1)  Personal representatives may receive fair and reasonable compensation for their responsibility in administering an estate by performing the personal representatives’ duties.

(2)  Compensation paid to a personal representative is for all the services performed by the personal representative to complete the administration of the estate including distribution of the estate and the conclusion of any trusts.

(3)  A personal representative may receive compensation for the care and management of property in an estate only if

                                 (a)    there is no outright distribution of that estate property at the date of death, and

                                 (b)    the trust is not varied by agreement among the affected beneficiaries or by the court.

Factors to be considered

2   The following factors are relevant when determining the compensation charged by or allowed to personal representatives:

                                 (a)    the gross value of the estate;

                                 (b)    the amount of revenue receipts and disbursements;

                                 (c)    the complexity of the work involved and whether any difficult or unusual questions were raised;

                                 (d)    the amount of skill, labour, responsibility, technological support and specialized knowledge required;

                                 (e)    the time expended;

                                  (f)    the number and complexity of tasks delegated to others;

                                 (g)    the number of personal representatives appointed in the will, if any.

Additional compensation

3   Additional compensation may be allowed when personal representatives

                                 (a)    are called upon to perform additional roles in order to administer the estate, such as exercising the powers of a manager or director of a company or business,

                                 (b)    encounter unusual difficulties or situations, or

                                 (c)    must instruct on litigation.

Compensation fixed in will

4   If the compensation payable to the personal representative is fixed in a will, no greater amount can be charged or allowed unless the fixed amount is varied by agreement among the affected beneficiaries or by order of the court.

Compensation to be shared

5   The compensation once determined must be shared among the personal representatives in proportions agreed to among the personal representatives or as ordered by the court.

Pre‑taking compensation

6(1)  Personal representatives may be paid compensation before completing the administration of the estate if

                                 (a)    the will provides for it,

                                 (b)    all the affected beneficiaries agree to it, or

                                 (c)    the court orders it.

(2)  If all or any part of the amount of compensation paid to a personal representative under subrule (1) is later reduced by the court, the personal representative must repay the disallowed amount immediately to the estate with interest at a rate and for a period set by the court.

Lawyer performs personal representatives work

7   If a lawyer or other agent performs some or all of the duties of the personal representative, the amount payable to the personal representative must be reduced commensurately.

Schedule on accounting

8   If a personal representative is required to give the beneficiary of an estate an accounting in which compensation to the personal representative is shown, the personal representative must give the beneficiary a copy of this Part.

Expenses

9   Personal representatives are entitled to reimbursement for expenses properly incurred by them in the administration of the estate, including the following:

                                 (a)    expenses reasonably incurred by the personal representatives in carrying out their duties;

                                 (b)    fees or commissions to agents, including lawyers, accountants, real estate agents, securities brokers, investment advisors, appraisers, auctioneers and other professionals, engaged to perform estate administration services or to buy or sell estate property.

 

PART 2

LAWYERS’ COMPENSATION

Categories of service

1   A lawyer may charge fees for the following categories of legal services in the administration of estates:

                                 (a)    core legal services;

                                 (b)    non‑core legal services.

Personal representatives duties

2   A lawyer may charge fees for legal services that involve carrying out personal representatives’ duties.

Agreement

3(1)  The lawyer and the personal representatives must agree to the categories of service that the lawyer will perform and to an arrangement or amount for each category of fees, disbursements and other charges.

(2)  The fees agreed to must cover, up to the time of distribution of the estate,

                                 (a)    all the core legal services or non‑core legal services,

                                 (b)    any personal representatives’ duties required to be performed by the lawyer, and

                                 (c)    any other services required to be performed by the lawyer.

Lawyer as personal representative

4   When a lawyer is also appointed as the personal representative under a grant, the lawyer may charge additional fees for any core and non‑core legal services performed by the lawyer as a lawyer.

Factors to be considered

5   The following factors are relevant when determining the fees charged by or allowed to a lawyer:

                                 (a)    the complexity of the work involved and whether any difficult or novel questions were raised;

                                 (b)    the amount of skill, labour, responsibility and specialized knowledge required;

                                 (c)    the lawyer’s experience in estate administration;

                                 (d)    the number and importance of documents prepared or perused;

                                 (e)    whether the lawyer performed services away from the lawyer’s usual place of business or in unusual circumstances;

                                  (f)    the value of the estate;

                                 (g)    the amount of work performed in connection with jointly  held or designated assets;

                                 (h)    the results obtained;

                                  (i)    the time expended;

                                  (j)    whether or not the lawyer and the personal representative concluded an agreement and whether the agreement is reasonable in all the circumstances.

Disbursements

6   Reasonable costs incurred by a lawyer as disbursements and other charges in performing services in any category are allowed in addition to any fees charged.

Statement of fees and disbursements to be in writing

7(1)  A lawyer must present a written statement of fees, disbursements and other charges to the personal representative, showing the details of the services performed, together with a copy of this Part.

(2)  If the personal representative is required to give the beneficiaries of an estate an accounting in which legal fees are shown, the personal representative must give them a copy of this Part.

Taxing accounts

8(1)  The lawyer or the personal representative may have the lawyer’s account reviewed by the review officer under the Alberta Rules of Court (AR 124/2010).

(2)  The review officer or the court may review fees, disbursements and other charges and may increase or decrease any of them.

Table 1 Core Legal Services

1   Receiving instructions from the personal representatives.

2   Giving the personal representatives information and advice on all matters in connection with the administration of the estate, including the following:

                                 (a)    the basis for the lawyer’s fees for the different categories of legal services;

                                 (b)    the basis for the personal representatives’ compensation and preparation of the proposed compensation schedule;

                                 (c)    providing a copy of this Schedule to the personal representatives.

3   Reviewing the will or the provisions of Part 3 of the Wills and Succession Act with the personal representative.

4   Receiving information from personal representatives about the following:

                                 (a)    the deceased;

                                 (b)    the beneficiaries;

                                 (c)    the estate property;

                                 (d)    the deceased’s debts;

                                 (e)    minors.

5   Obtaining details of all the property and debts of the deceased for the purposes of an application to the court, including the following:

                                 (a)    the full nature and value of the property of the deceased as at the date of death including the value of all land and buildings and a summary of outstanding mortgages, leases and any other encumbrances;

                                 (b)    any pensions, annuities, death benefits and any other benefits;

                                 (c)    any debts owed by the deceased as at the date of death;

                                 (d)    preparing all required documents for grant applications;

                                 (e)    preparing notices to all beneficiaries;

                                  (f)    arranging for surviving spouse or surviving adult interdependent partner to receive notices under Part 5, Division 2 of the Wills and Succession Act and Matrimonial Property Act, if necessary;

                                 (g)    arranging for family members to receive notices under Part 5, Division 2 of the Wills and Succession Act, if necessary;

                                 (h)    attending on signing of application for grant, filing with the court, payment of fees and dealing with the clerk;

                                  (i)    advising the Public Trustee, if necessary;

                                  (j)    receiving the grant.

6   Preparing documents to advertise for claimants, arranging for advertising and obtaining affidavit of publication.

7   Preparing declarations of transmission and powers of attorney for stocks and bonds transferrable under the Alberta grant.

8   Preparing transmission and transfer documents for land transferrable under the Alberta grant.

9   Preparing all other documents required to transmit and transfer property transferrable under the Alberta grant.

10   Advising the personal representatives on any trusts required by the will.

11   Advising the personal representatives to prepare and file tax returns.

12   Confirming receipt of clearance certificates from Revenue Canada.

13   Submitting personal representatives’ financial statements for approval to the beneficiaries on an informal basis.

14   Preparing releases and acknowledgments of trustee(s) and obtaining and filing them if so instructed by the personal representatives.

15   Generally advising the personal representatives on all matters referred to in this Table.

Table 2 Non‑core Legal Services

1   Acting as conveyancing lawyer on any sale of land.

2   Acting as lawyer on the sale of other property or businesses.

3   Preparing personal representatives’ financial statements for submission to residuary beneficiaries.

4   Preparing all documents and acting for the personal representatives in any court proceedings involving the estate, including but not limited to the following:

                                 (a)    formal proof of a will;

                                 (b)    formal passing of accounts;

                                 (c)    all other contentious matters.

5   Negotiating with any taxing authorities in Alberta or elsewhere with respect to the assessment and payment of any taxes or duties levied against the deceased, the estate or the beneficiaries and preparing all documents in connection with the negotiations.

6   Arranging to obtain a resealed or ancillary grant in another jurisdiction.

7   Preparing all documents and obtaining a resealed or ancillary grant in Alberta.

8   Preparing all documents and obtaining a grant of double probate.

9   Preparing all documents and obtaining a grant of trusteeship of minors’ estates.

10   Dealing with any claims by claimants.

11   Setting up any trusts required by the will and arranging for the reimbursement of the trustees for services rendered to the trusts.

12   Identifying property not forming part of the estate but passing by survivorship or passing directly to a named beneficiary outside the will, including

                                 (a)    preparing documentation to transfer land and other property held in joint tenancy to the surviving tenants;

                                 (b)    preparing documentation to pass property to designated beneficiaries outside the will.

13   Arranging for any other legal services not included in Table 1.

14   Generally advising the personal representative on all matters referred to in this Table.

AR 130/95 Sched.1;201/2003;101/2010;165/2010;10/2012

Schedule 2 Court Fees

1(1)  For issuing grants of probate or letters of administration or resealing grants, excluding trusteeship but including one certified copy of the document, where the net value of property in Alberta is

                                 (a)    $10 000 or under                                                             $  25

                                 (b)    over $10 000 but not more than $25 000                        100

                                 (c)    over $25 000 but not more than $125 000                      200

                                 (d)    over $125 000 but not more than $250 000                    300

                                 (e)    over $250 000                                                                    400

(2)  This section applies to all grants of probate and letters of administration issued on or after February 25, 2000 and the grants resealed on or after February 25, 2000.

(3)  This section comes into force on July 1, 2000.

2   Except items referred to in section 1, for documents that require the opening of a court file respecting an estate and all subsequent filings or acts, a single fee of                                                        $  200

3   For each application for trusteeship                                      $  200

4   For issuing each grant of double probate, supplemental grant or grant of administration of unadministered property                                                          $  200

5   For each caveat filed                                                                 $  200

6   For each certified copy of a document other than the initial certified copy                                                        $   10

7   For each search                                                                         $   10

8   For a photostatic copy or faxed copy, per page                   $     1

 

 

Definitions

 

For the purpose of this Schedule,

                                 (a)    “core legal services” are the legal services listed in Table 1 of Part 2 normally rendered by a lawyer for the personal representatives in connection with the administration of an estate;

                                 (b)    “non‑core legal services” are legal services listed in Part 2 Table 2 rendered by a lawyer for the personal representatives that are in addition to the core legal services required in the administration of an estate;

                                 (c)    “personal representatives’ duties” are the tasks listed in the Table in Part 1 normally required to be performed by a personal representative in the administration of an estate;

                                 (d)    “time of distribution” means

                                           (i)    when the estate property is distributable to the beneficiaries immediately on the death of the deceased, the time when distribution to the beneficiaries is complete,

                                          (ii)    the time when the transfer of a minor’s property to the minor’s trustees is complete, or

                                         (iii)    when the estate property is not all distributable to the beneficiaries immediately on the death of the deceased because trusts delay the final distribution, the time when distribution of immediately distributable property to the beneficiaries is complete, and transfer of the trust property to the trustees is complete.