What is Probate in Alberta?

Why Do I Need Probate?

Anna Dunaeva DLegal Anna Dunaeva June 20, 2023
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The death of a loved one is never easy. However, understanding the concept of Probate can provide clarity and guidance for individuals involved in estate planning or those facing the responsibility of executing a loved one’s will.

Probate describes the process that legally confirms the validity of a will and allows for the management of an estate. While it may seem daunting, Probate can provide the necessary protection and structure for the smooth settling of affairs. Seeking guidance from a legal professional can help make the process smoother and speed up the settlement of affairs during this difficult time.

Probate Alberta

In Alberta, Canada, Probate is the legal process that validates and confirms the will of a deceased person as the official last testament.

The probate process begins by filing an application with the Surrogate Court, which includes submitting documents such as the original will, a certified death certificate, an affidavit of executor,  an inventory of assets and liabilities, and renunciation or consent forms with the official Grant of Probate. The Surrogate Court will then grant your Probate or follow up with the next steps, or ask for more documentation.

The Role of Probate Court

The probate court is officially known as the Surrogate Court. It is a division of the Court of King’s Bench, the superior court in the province of Alberta. The Surrogate Court has jurisdiction over matters related to the administration of estates, including the granting of Probate and the validation of wills.

The Surrogate Court oversees the entire probate process, ensuring that the deceased person’s assets are properly distributed according to their will or the rules of intestacy. It reviews applications for grants of Probate, grants of administration, and other related matters.

The Surrogate Court operates throughout Alberta, and its procedures and rules are governed by the Surrogate Rules and the Wills and Succession Act. The court provides a forum for resolving estate disputes, interpreting wills, and ensuring that the administration of estates adheres to the law.

Grant of Probate vs. Grant of Estate Administration

A Grant of Probate is issued when there is a valid will and named executor(s). In contrast, a Grant of Estate Administration is issued when there is no valid will. Both grants serve to provide legal authority to the executor(s) or administrator to handle the estate’s affairs. Still, the key distinction lies in the presence or absence of a valid will.

Alberta’s Wills and Succession Act governs the distribution of assets in cases where a person dies without a valid will. The Grand of Estate Administration is typically issued to a suitable person, usually a close family member or next of kin, who applies to administer the estate. The Grant of Estate Administration authorizes the administrator to manage and distribute the assets of the deceased person’s estate following the rules of intestacy (default rules established by law when there is no valid will).

Familiarising oneself with the local laws and understanding the provisions of the Act is essential for ensuring compliance and adequately addressing the estate settlement process. Consulting with a probate lawyer at DLegal helps navigate the legal complexities and ensures adherence to the relevant laws.

When is Probate Required in Alberta?

Not everyone will have to go through the Probate in Alberta. However, it is more common to go through it than not. Generally, Probate is required in Alberta when the deceased person owned assets solely in their name at the time of death. Factors that can help determine when Probate is necessary are the following:

The value of the estate: If the deceased person’s estate has a significant value, it’s more likely that Probate will be required. This is because financial institutions and other organizations may request a Grant of Probate before they release the assets to the executor.

Real estate: If the deceased person owned real estate in their name alone or as tenants in common with others, Probate is typically required. This is because the Land Titles Office will need the Grant of Probate to transfer the property to the beneficiaries or the executor.

Assets held in financial institutions: Banks and other financial institutions usually require Probate if the deceased person’s accounts have a substantial balance or investments. Each institution has its own threshold for when Probate is required, so it’s essential for the executor to check with them directly.

No valid will: If the deceased person didn’t leave a valid will (also known as dying intestate), a grant of estate administration is generally required.

It’s important to note that certain assets may pass directly to beneficiaries without going through Probate. This includes assets held in joint tenancy with the right of survivorship, assets with designated beneficiaries (e.g., life insurance policies with named beneficiaries), or assets held in trust. These assets typically bypass Probate and transfer directly to the designated individuals.

What Happens After Probate is Granted in Alberta?

After Probate is granted in Alberta, the executor can begin administering the estate by notifying beneficiaries, settling outstanding debts and taxes, addressing claims, filing tax returns, and distributing assets as per the will. They must provide an accounting of the estate’s financial transactions to beneficiaries and act in their best interests throughout the process. Once all obligations are met, the executor can close the estate, retaining records and documentation for future reference if needed.

Avoiding Probate Alberta

Some individuals may wish to avoid Probate altogether by utilizing estate planning strategies such as creating trusts, designating beneficiaries on insurance policies and financial accounts, or holding assets in joint tenancy. An estate planning lawyer can help provide guidance tailored to your specific circumstances and help develop an estate plan that minimizes the need for Probate.

However, contrary to popular belief, the process is not as daunting, tedious, or pricey as one might think. In fact, most of what you’ve heard about Probate or ways to avoid it is probably not true.

Depending on the circumstances of your case, it can take just two weeks to submit the probate paperwork to the court. The court will then take approximately 3-4 months to review the application and issue the Grant of Probate or Letters of Administration. However, in many cases, we receive the Grant within 3-4 weeks of filing for probate applications in Calgary.

The Court filing fee for a Probate in Alberta can be as low as $35.00 for estates of $10,000 or less and is capped at $525 for estates valued over $250,000. Probate fees are payable to the probate court and are calculated based on the value of the estate.

Additionally, taxes may apply. However, these depend on the total value of the deceased person’s assets. 

Probate and the Canada Revenue Agency

The Canada Revenue Agency (CRA) plays a role in the probate process by assessing and collecting any outstanding taxes owed by the deceased person. The executor must provide the necessary information to the CRA, including tax returns and other relevant documents. Collaborating with a lawyer ensures compliance with the CRA’s requirements and facilitates the smooth resolution of tax-related matters.

Probate and Funeral Arrangements

Funeral arrangements and related expenses are generally addressed before the probate process begins. The executor can access funds from the deceased person’s estate to cover funeral costs, provided sufficient assets are available. Coordinating with the funeral home and understanding the process for accessing estate funds can help streamline this aspect of the overall process.

Potential Disputes

In some cases, disputes may arise during the probate process. These disputes can arise due to concerns about a will’s validity, unclear language, executor actions, inheritance disagreements, omitted beneficiaries, or creditor claims. These conflicts may involve challenging the will’s legitimacy, interpreting the testator’s intentions, addressing executor issues, or contesting asset distribution.

Resolving disputes often requires negotiation, mediation, or litigation, and consulting an experienced estate lawyer is crucial for navigating these complex issues and reaching a fair resolution. Seeking legal advice early on can help prevent and resolve potential disputes efficiently.

The Probate Process

Probate in Alberta is a vital legal process that validates a deceased person’s will and oversees the appropriate distribution of their assets. Given the complexities involved in the probate process, consulting an experienced estate lawyer is crucial to ensure compliance with legal requirements and adherence to the terms of the will, ultimately providing peace of mind for all parties involved.

Reach out to DLegal today to get started on the probate or estate administration process. We will handle your case with compassion and care so that you can achieve the best outcome during this difficult time.


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