What is “Probate”?
A Grant of Probate issued by the Court of King’s Bench of Alberta is really nothing more than the Court’s statement that the Will presented to the Court has been validly executed. The Grant then gives the Personal Representative named in the Will the legal authority to deal with the assets of the Estate and distribute them according to the instructions in the Will.
When is a Grant of Probate required?
There are several circumstances where a Grant of Probate is a required step upon the death of a Testator before the Estate can be distributed.
First, if the Testator owned land: that is, a house, raw land, a condominium unit, etc., in their own name at the time of death, a Grant of Probate will be required. The Land Titles Office will not register a transfer of land from a deceased to a third-party without the formality of a Grant of Probate being issued. The Grant of Probate will allow the Personal Representative of the Estate to register a “transmission of land” such that the Personal Representative is recorded on the title to the property and has the authority to register a transfer on the sale of the property.
Second, the Testator’s bank may require a Grant of Probate be issued before they will release the bank balances to the Personal Representative. This requirement is usually triggered by the bank balance on the date of death; most banks have a “trigger” amount that will require the grant be provided. This gives the bank the assurance that a Justice of the Court has declared the validity of the Will and the Personal Representative has the legal authority to control the bank accounts. The threshold varies by institution and the type of bank account, so the bank will advise if a Grant of Probate is required.
Third, a Grant of Probate may be obtained where there are disputes between beneficiaries of the Estate. The application for a Grant of Probate includes all named beneficiaries in the Will (see below) who may either be satisfied as to the contents of the Will or, conversely, will have an opportunity to challenge the contents or circumstances of making the Will. This could be seen as a tactical response by a Personal Representative to fend off accusations that something is being hidden from beneficiaries or that the Will is not being administered properly.
Grant of Probate Applications
The application for a Grant of Probate is an exercise in gathering information, submitting it to the Court of King’s Bench through their digital portal and notifying the beneficiaries of the application. At this time, access to the Alberta Justice Surrogate Digital Service is restricted to law firms, so some assistance will be needed for a expeditious application and issuance of the Grant of Probate.
The application requires the following information:
– Deceased’s date of birth, date of death and last address;
– Personal representatives’ names, residential and email addresses;
– Names, addresses (residential and email) of all beneficiaries;
– An inventory of assets owned and debts payable by the deceased as of the date of death;
– A Funeral Director’s Statement of Death; and
– The original of the deceased’s Last Will and Testament, and originals of any Codicils to that Will.
Once this information is uploaded to the Surrogate Digital Service, the Personal Representative will receive a secure email from the Clerk of the Surrogate Court to verify the accuracy of the information provided. If the information is correct, the Personal Representative confirms that in the email and the application will proceed. If the information is incorrect, the Personal Representative indicates that there are errors. The Clerk of the Court will then notify the lawyer submitting the application to make the corrections and the new application is sent to the Personal Representative.
Once the application is confirmed, the Court will then send notices to the beneficiaries listed in the application. This notice will include a copy of the application, a copy of the inventory and a copy of the Last Will and Testament. Beneficiaries do not have to acknowledge the contents of the application, but they then could file any challenges they may have.
Once the notices have been sent to the beneficiaries, the lawyer filing the application will be required to send the original Will to the Court’s Will Registry by registered mail and pay the Court’s filing fee.
If all has gone smoothly a Grant of Probate will be issued by the Court of King’s Bench within 5-8 weeks of filing the application.
What Does an Application Cost?
The Court filing fee is a maximum of $525.00 which applies to an Estate with a net value of $250,000.00 or more.
Legal fees ……..
Other Issues
1. The Personal Representative does not live in Alberta
It is preferable that at least one Personal Representative is an Alberta resident, but it is not required. If the Personal Representative is a non-resident, there may be additional issues about providing either an indemnity bond or obtaining the consent of all beneficiaries to proceed without a bond. The Personal Representative may apply to proceed without a bond by swearing an affidavit as to their knowledge of the deceased’s financial affairs.
2. Intestate Applications
Applications for a Grant where the deceased died without a Will are referred to as applications for a Grant of Administration. The process is very similar to that of a Grant of Probate with some notable exceptions.
First, determining who the applicant will be is set out in the Estates Administration Act and is decided by a hierarchy of the right to apply as set out in the Act. Generally, priority is as follows:
Spouse, or Adult Interdependent Partner, of the deceased;
A child of the deceased;
A grandchild of the deceased;
A parent of the deceased;
A sibling of the deceased; and so on
If an applicant lower in priority wishes to make the application, those with a higher priority must first renounce their appointment. For example, if the deceased’s daughter wished to make the application, the deceased’s spouse must first waive their right to apply.
Distribution of the intestate estate is set out by provisions of the Wills and Succession Act, with priority given to survivors of the deceased in a hierarchy of entitlement. This hierarchy can be very complex and is beyond the scope of this post.
Glossary
Estate – the total net worth of an individual—comprising all assets (land, property, money) minus liabilities—at the time of death.
Intestate or Intestacy – a legal state of dying without a valid will, meaning the deceased’s estate is distributed according to provincial laws rather than personal wishes. It often leads to court-appointed administration, where assets are divided among legal next-of-kin, such as spouses or children, following strict hierarchy rules.
Personal Representative – a person or company named in a Will to carry out the instructions provided in the Will. Formerly referred to as an Executor/Executrix and/or Trustee/Trustatrix.
Testator – a person who makes a Will.
Will – a set of written instructions given by the Testator prior to their death directing the distribution of the Testator’s assets.