If you have heard the word “probate” or “probating a will,” you have probably heard that it is stressful, it is expensive, time-consuming, and that it is a complicated and lengthy process. While some of those descriptions may be true, it is important to look at the process. Let’s start with understanding what is “Probate” and what is the process of “Grant of Probate”. Every jurisdiction has its own laws and rules to deal with the process of Grant of Probate; our discussion today will be based on the process related to Alberta.
So, what is Probate?
Probate is the judicial procedure whereby a will is “proved” in a court of law and recognized as a valid public document that is the true last testament of the deceased, Or, in the absence of a legal will, it is where the estate is settled according to the laws of “intestacy” in the province of residence of the deceased at the time of death. In simple words, it is a process of submitting the original will of a deceased person to the court and obtaining a Grant of Probate from the court. Essentially, to probate a will means to prove that it’s real. The package of documents that you send to the court is called the Application for Probate.
What is the granting of probate?
It is one of the initial steps in the legal process of managing the estate of a deceased person, determining all claims and distributing the deceased person’s property under a will. A probate court decides the legal legitimacy of a testator’s (deceased person’s) will and grants its approval, also known as Granting of Probate, to the executor. The probated will then becomes a legal instrument that may be relied upon by the executor in the law courts if necessary.
Probate Law in Alberta
There are many laws that apply to dealing with an estate process. The main ones are:
- Estate Administration Act
- Wills and Succession Act
- Trustee Act
- Surrogate Rules of Court
Helpful Tip #1
Depending on the situation, many other laws may apply, such as laws about families and support, real estate, insurance and taxes. *Please contact your lawyer to ask for more details.*The estate lawyers at Shim Law Office are well versed and experienced with those complex issues.
The best process of administering an estate is fairly straightforward but not always followed. The possessions or assets of the deceased are supposed to be held back between the time from when the person passes away until the court issues the Grant of Probate or the Grant of Administration. Probate is granted after the courts receive all the necessary information required to affirm that the will is valid. The administrator or executor of the estate then begins handling and distributing the assets. Sometimes this happens under the direction of the courts, “the Surrogate Court.” This court is responsible for the probating of estates. The rules used in Alberta governing the probate procedure and process are referred to as “The Surrogate Court Rules.
Do you really need probate?
Not all wills must go through the probate process. However, if the deceased person owned assets in his or her own name, there is a very good chance that probate will be required. Look at the assets in the estate with the following in mind.
Probate is not required to deal with:
- Property that the deceased owned as a joint owner with another person, such as real estate or bank account, as those assets will automatically belong to other joint owners by right of survivorship.
- Assets that name a beneficiary directly, such as a life insurance policy or an RRSP that names someone other than the person’s estate, as those assets are automatically paid to the survivor as a matter of contract.
A grant of probate may be necessary when the deceased person owned certain real estate, including homes, cottages, land, etc., in his or her name alone. When determining whose name is on the title to real property, one should always go to the land titles office and ask for a title search. Do not assume that because the family always thought that a parcel of land belonged to someone that it necessarily does belong to that person or to him or her alone. Always check the title.
Helpful Tip #2
Probate is almost always required when there are registered assets such as Registered Retirement savings plans (RRSPs), Retirement income funds (RRIFs), Locked-in Retirement accounts (LIRAs), or others that name the estate as beneficiary. Even having bank accounts and non-registered investments over a certain dollar amount may mean that you need to get probate.
How long it takes?
Now let’s move on to our next most important consideration, which is a timing factor. So, you cannot make an application to the court until at least seven days have passed since the deceased person died.
Then it usually takes several weeks of inquiry and work before you can finish gathering your documents. The collection of records, in particular, can take a long time because you may be waiting for information from the Land titles office, banks, insurance companies, or other sources.
Once the application is filed with the court, it can take several weeks or sometimes months for the court to review the application and issue a grant. When the grant is ready, the court will call you. They will let you know at this time what the court fees are. You must pay the fees before the court issues you the grant.
Helpful Tip #3
Keep in mind that if you make mistakes in your application or leave out information, the clerk of the crown might reject your documents and require you to fix them and refile them. So, if you are not sure, please contact your lawyer for further details.
What does it cost?
When you file your Application for Probate, you will have to pay a fee to the court. The fees are the same everywhere in Alberta and are based on the net value of the estate. There is no GST added to the fees.
Let’s see the quick reference of the court based on the value of the estate: (Re: CPLEA.ca)
|Value of Estate||Court Fee|
|$10,000 or under||$35|
|Over $10,000 but not more than $25,000||$135|
|Over $25,000 but not more than $125,000||$275|
|Over $125,000 but not more than $250,000||$400|
The court fee mentioned above is usually the complete fee for the Application of Probate. However, there are separate extra fees for certain services, such as filing a caveat or requesting copies. You can check the respective court fees for these services on the court’s website.
Don’t forget to add on a lawyer’s fee and other expenses if you are thinking of hiring one. Our team would be happy to review your situation and provide an estimate of the legal fees that may be required to handle the matter on your behalf.
Can you do this without a lawyer?
If you are the executor of an estate, and the will, the assets, and the family situation are all straightforward, you should be able to complete the Application of Probate yourself. But you have to be honest with yourself here. You may have no prior experience with the courts and may not be familiar with the forms or the language of the law. If the matters are too complicated for you to handle on your own or become too complicated halfway through, you should consult a lawyer. Don’t be embarrassed if this is the case. This is what lawyers do all the time and they can identify problems and find solutions that you may not be aware of.
Helpful Tip #4
Here are some situations where you might need to consult a lawyer:
- Someone in the family is determined to contest the will because he or she believes that the deceased person was pressured into writing the will in somebody’s favour.
- Someone in the family is claiming that he or she is entitled to more of the estate than he or she is going to get under the will.
- Some parts of the will can be read two ways, so you are not sure what the deceased person meant by it.
- Words or sentences have been crossed out of the will, or words have been handwritten in between the lines.
- The deceased owned assets in another country.
- Where you find the photocopy of the will and not the original
If you are concerned about how these situations could impact your personal circumstances, we encourage you to contact our expert Estate Lawyers for a consultation.
If you have any questions about:
- What is a Probate Lawyer, and how can they help me?
- What is an executor?
- What assets are subject to probate in your situation?
- How can you get a Grant of Probate in your case?
Call our Team today
Our probate team wants to help you. At Shim Law, we help you when a family member or loved one has passed away, and you are executor for them.
Published by: Vivek Vats and Jerry Thompson