(or, how to deal with a receding heir line)

Written by Andrew Powell, Partner

One of the main functions of an executor or estate administrator is locating heirs and other people who may benefit from the estate – these people need notice that someone has died.


Under s.121 of the Wills, Estates and Succession Act (“WESA”), anyone who intends to become the executor of an estate (one of the things that is accomplished by an application for probate), must provide notice of that intention  to certain people.  WESA doesn’t actually specify which people, because sometimes the drafters of legislation like to send you on a statutory scavenger hunt.  Instead, what it says is that notice must be given to the people identified in another statute: the Supreme Court Civil Rules.


So then you have to turn to Rule 25-2(2) to find out who must receive notice.  As it turns out, notice must be provided to:


  • other executors or intended executors;
  • beneficiaries: and
  • intestate successors.


Intestate successors are those people who would stand to inherit your estate if you have no will, that is, if you die “intestate”.


And who are these “intestate successors”?


Well, keeping to form, after WESA has directed you to the Supreme Court Rules, the Supreme Court Rules then direct you right back to WESA, where you learn in s.23 that intestate successors are your descendants and relatives, with relatives being anyone up to your great grandparents and then down again by as many as five degrees of separation.  These relatives, many of whom you have likely never met or heard of, all might have a claim against your estate.  Them, and also creditors to whom you owe more than $10,000.


Fortunately, there is also an escape clause: Rule 25-2(1), which brings in the very helpful words: “unless the court otherwise orders”.


Why would the court order you not to provide notice to possible heirs or claimants?


One big reason is that five degrees of separation is a lot. When you have to start saying, “great, great, great” you know you are dealing with some distance.  And if you need to search for distant relatives, the estate may have to hire people.  Professional genealogists check old newspapers, birth records, and other sources, and make a living finding people and producing family tree documents that are larger than tabletops.


In one case we argued, a fellow died in 1932 but inadvertently his estate neglected to deal with a piece of land.  This forgotten property grew in value until it was finally expropriated by a municipality and it was discovered that it belonged to an old estate.  There were quite a few dollars at stake.  But the deceased landowner had eight children, some of whom also had eight children, and so on, so that in the intervening 80 years or so, the property proceeds were already being divided into slices in the magnitude of 1/1054.  And we hadn’t yet found them all.


Hence, we applied to Court and were forgiven from expending any further efforts trying to locate beneficiaries.  The cost just did not meet the benefit.


Other circumstances where you may seek to be relieved from notifying potential beneficiaries is where the family is too spread out globally, or a beneficiary has simply dropped off the map, or where the estate is too small to justify a prolonged search, or where it is otherwise futile or impractical to find people.


The lessons to be learned from this?  Check your own family tree.  And if, somewhere in there, you find out that you have a relative with lots of money, just make sure you are really easy to find.