Creditors, Debts and Expenses

The estate is responsible for paying all disbursements or costs incurred by the executor or administrator in administering the estate. Disbursements include out of pocket expenses. The court can review the disbursements paid to ensure they are accurate. Common costs for administering an estate are:

• court costs;
• fees payable to the Public Guardian and Trustee (PGT) for obtaining consent or a Certificate No Infants;
• Information Services Corporation (ISC) costs to transmit or transfer land;
• fees payable to the lawyer representing the personal representative (see Rules of Court); and
• personal representative's fees.

Estate debts are the debts owed by the deceased at date of death. The executor or administrator is required to identify the debts of the estate.

They should review the personal papers of the deceased and make inquiries to family, friends, neighbours and businesses, as well as conduct a personal property lien search and a judgment registry search.

In addition, a Notice to Creditors – Form 16-48 should be published as required by Section 32 of The Administration of Estates Act. The notice is to be published once a week for two consecutive weeks in a newspaper nearest to the last residence of the deceased.

The Income Tax Act requires that every personal representative obtain a Final Clearance Certificate from Canada Revenue Agency before paying estate debts.

Debts of the deceased must be paid before any of the gifts provided for in the will are paid or transferred to the beneficiary. Where there are insufficient assets in the estate to pay all creditors, the debts are to be paid in an order of priority depending on the circumstances. As this is a complex area of law, it is strongly encouraged that the executor or administrator consult a lawyer in these circumstances to ensure that the debts are paid in the appropriate order and if necessary make application to the court for directions. Generally, the debts of an insolvent estate may be paid as follows:

1. Secured creditors are paid, to the extent of the value of the asset over which they have security. If there is a deficiency,(i.e. the value of the asset is less than the debt owing) the secured creditor will rank with the other unsecured creditors with respect to the deficiency;
2. Reasonable funeral and testamentary expenses incurred by the legal executor or administrator of the deceased;
3. The costs of administration, including the expenses and fees of the executor or administrator, property taxes, insurance fees, and legal costs;
4. Debts that have legislative priority over unsecured creditors, for example, maintenance for children, rent owing to a landlord, or wages, salaries or commissions owing to an employee of the deceased, debts owing pursuant to the Income Tax Act, or debts owing as a result of the Bankruptcy and Insolvency Act;
5. All other unsecured debtors, including claims of the Crown in right of Canada or of any province that do not have legislative priority, are then to be paid. If there are insufficient funds, they are paid ratably.