5. MAKING AN APPLICATION TO PASS PROBATE ACCOUNTS AND APPLYING FOR COMMISSION
An application to pass accounts and seek commission is made by filing a motion and accompanying affidavit in the subject probate file. The approved form is UCPR FORM 150.
UCPR Form 150 includes the form of the Notice of Motion and the affidavit which sets out the required categories of information for probate accounts and prompts the supporting documents.
If you are uncertain as to whether accounts should be passed, or if you are uncertain as to whether you are entitled to apply for commission, or if the passing of accounts or a claim for commission is likely to be contentious, it is recommended that you seek legal advice from a practitioner who is experienced in probate accounts.
Please note that if you are filing the first set of accounts for the estate you must commence the account ledgers from the date of death of the testator.
The Accounts for the Estate must be:
9. PASSING ACCOUNTS: WHAT CAN BE ALLOWED OR DISALLOWED
Before passing the accounts the Registrar may disallow any disbursement in part or in whole and require the executor or administrator to reimburse the estate for the amount disallowed (see section 85 (4) of the PAA).
In proceedings to pass accounts, the Registrar cannot determine issues such as:
These are matters appropriate to a separate "administration suit" in the Equity Division of the Supreme Court (for example an appropriate application by summons under Part 46 or Part 54 of the Uniform Civil Procedure Rules (UCPR)). The bills for all professional work must be provided. The Registrar will verify that the bills do not include charges for non-professional work that is executorial in nature. If it is found that the bills include non-professional work, the executor may be ordered to reimburse these amounts to the estate. The Registrar will also moderate a reasonable amount that can be paid from the estate for the professional work that has been undertaken for the estate. Receipts for any distributions to beneficiaries, including any assets transferred in-specie to a beneficiary, must be provided. Bank statements showing the closing balance as at the end of the accounts must be provided. The Registrar may require such additional receipts or other evidence of transactions shown in the accounts and if appropriate, may raise a requisition for further information. Costs relating to preparing and passing the accounts and in relation to the application for commission should not be included in the accounts or paid from the estate before the accounts are passed. Such costs will be fixed separately by the Registrar as part of the order passing the accounts and allowing commission.
10. DETERMINING COMMISSION
If an executor or administrator is seeking commission, information and evidence in support of commission should be included in a separate affidavit. This information may include a summary of the steps taken in administering the estate, setting out any specific complications or difficulties that were encountered and any other matters that you think may be relevant in determining the commission that should be allowed.
In determining what should be allowed for commission, the Registrar will consider all relevant matters including:
Commission is discretionary and will depend on the circumstances of each estate. Commission may be awarded as a lump sum or as a percentage rate. The following ranges of percentages for commission are a guide (only) as to what might be allowed.
The Probate Accounts: Guidelines can be found here.
The Court rules in relation to applications to pass accounts and for commission are set out in Part 78 Division 11 of the Supreme Court Rules. The rules can be found here.
The Probate and Administration Act can be found here.
The Schedule of Court Fees can be found here.
The following judgments provide some guidelines in relation to application for commission:
11. FILING YOUR APPLICATION WITH THE COURT
12. CONSIDERING YOUR APPLICATION
If further information is required before the accounts can be passed the Registrar will raise a requisition asking you to provide additional information or documentation.