Probate and Estate Administration

Death is inevitable. It is not a question of “if I die”; rather, it is a question of “when I die”. Humans, as we are, a lot of us still struggle with the acceptance of dying. Hence, we delay making our last wishes and intentions through a Will, Codicil or any other documents that dictate our testamentary dispositions. Or worse, we fail to make a Will at all. When a loved one passes away, several scenarios below may arise;

• There is a valid Will, but obtaining a Grant of Probate may not be necessary (i.e. assets are owned in joint tenancy with another or when assets have their own Designated Beneficiaries – life insurance, RRSP etc.; or
• There is a valid Will, but obtaining a Grant of Probate is required. A Grant of Probate is a Court Order that acknowledges and confirms the persons named as Personal Representatives or Executors or Executrix or Trustees to have authority to administer and distribute the estate of the deceased; or
• There is a valid Will, but the Will did not appoint any Personal Representative or Executor; or if there were appointments, the named persons are unable or unwilling to act; or if the Will does not address the disposition of the entirety of the estate; or
• There is a Will, but the court has not declared it valid; or
• There is no Will at all which means that no person has the authority to deal with the intestate estate of the Deceased person.

The first situation is straightforward; the estate property may pass by operation of law. The second scenario would require the obtention of a Grant of Probate. The third to fifth situations will require the obtention of a Grant of Administration.

Moreover, it is to be noted that different grants may be granted depending on the contextual circumstances in each file. The grants may range from being general, unlimited and unrestricted to grants that are restricted and limited in purpose and time.

Grant of Probate

In order to obtain the Grant of Probate, an Applicant, usually the named Personal Representative or Executor in a Will, must go through a process called probate. Probate is the legal means of verifying and approving a Testator’s Last Will and Testament. Basically, it confirms that the Will is valid and the Personal Representative or Executor has the authority to deal with the testate estate.

The Grant of Probate further facilitates the legal transfer of ownership of a Testator’s assets to their beneficiaries, as named in the Will. When a Testator passes away and leaves behind assets, these assets must be transferred to their chosen beneficiaries. To do this, the Will must be proven valid, and the testate estate must be administered according to the terms of the Will.

When is a Grant of Probate Necessary?

In Alberta, the probate process is necessary when a Testator passes away and leaves behind more than a certain amount of assets. The amount of assets that must be left behind to require probate varies from province to province. In Alberta, the amount of assets that must be left behind to require probate is $25,000 or more.

What assets are subject to Probate in Alberta?

Probate applies to all the assets the Testator owned in their name, such as real estate, investments, bank accounts, and other personal properties. This may even include assets that are held jointly with another person, life insurance policies, RRSPs, and any other assets that may pass by beneficiary designation. Probate also applies to any debts the Testator owed at the time of death, such as mortgages, loans, and credit card balances.

Why is Probate Necessary?

The Probate process is necessary to ensure that a Testator’s assets are distributed according to their wishes. Without probate, there can be disputes about who should inherit the assets and how much each person should receive. Probate also helps prevent fraud and ensure that taxes are paid. Probate also helps protect creditors by ensuring that debts are paid before any assets are distributed. Lastly, probate helps to ensure that a deceased person’s wishes are followed and that their assets are distributed in the most efficient and cost-effective way. As a whole, when probate is done properly, the Personal Representative or Executor avoids the risks of being held personally liable in handling the testate estate of the Testator.

Who may Apply for a Grant of Probate?

The Estate Administration Act in section 13(1)(a) grants first to last priority of persons who can apply for a Grant of Probate. Please refer to the list below, which is a substantial reflection of the following:

section 13(1)(a):, if a will exist in descending order of priority to:

1. A personal representative named in the Will,
2. A personal representative appointed by the person expressly authorized in the will to appoint a personal representative;
3. A residuary beneficiary named in the Will;
4. A life tenant of the residue in the Will;
5. A beneficiary under an intestacy if the residue is not completely disposed of in the Will;
6. A beneficiary receiving a specific gift in the Will;
7. A contingent beneficiary of the residue in the Will;
8. A contingent beneficiary of a specific gift in the Will;
9. The Alberta Government;

What is the process of obtaining a Grant of Probate?

At Edmonton Law Office, we understand that you recently lost a loved one, and expectedly, you may still be mourning. After all, it is almost always tough to say our goodbyes. We also know that the process of obtaining a Grant of Probate can be complex and time-consuming. To give you an idea about how you can prepare for your Grant of Probate Application, we have enumerated the necessary steps involved in the probate process. Please refer below:

1. The Applicant, who is usually the Personal Representative, Executor or any eligible Applicant, must gather information about the Testator, the beneficiaries and the inventory of assets and liabilities of the Testator. They should also gather all the relevant documents, such as the Will, Codicil, Memorandum, Testamentary Contracts, Affidavits of Execution and any other documents that are relevant to the Application;
2. Then, prepare all the required court documents, commencing from the Probate Grant Application, Eligibility form (if applicable), Inventory of Assets and Liabilities, as well as other various forms that are applicable to your circumstances. These documents may be required to be sworn, affirmed or certified;
3. The next step is a publication of a Notice to Creditors and Claimants in a newspaper. This step is optional and is an extra protection for the Applicant to avoid being personally liable to a potential claimant against the estate. If taking this step, the Applicant then needs to complete a Statutory Declaration of Publication, which will then be included in your Application;
4. The Application can then be submitted to the Surrogate Court. Depending again on your eligibility, you can file the Application in either method:
   1. Via the Digital Filing Service; or
   2. Via the regular application

Speak to our Probate and Estate Lawyers to know more about your options.

Note: Regardless of which options you take, when your Application is filed, the required notices must be sent to the appropriate persons. In addition, the court will require the eventual submission of the original Last Will and Testament, Affidavit of Execution and other relevant documents applicable to your file.

5. Upon receipt, the court will review the application. The court clerk does the first review and then passes it to the justice for the second review. If it is incomplete, the court may return your Application for correction or reject it. However, if your application is complete and the information you provided is in order and satisfactory to the justice, the Grant of Probate may be issued.Note: Pay particular attention to the type of Grant that was issued. As previously mentioned, Grants may be general, unlimited and unrestricted or restricted and limited in purpose and time. Moreover, please note that the Surrogate filing system changed in June 2022, and as a result, the format of the Grant of Probate itself, if the Application is done via Digital Filing Service, is quite different from the regular format of the Grant before the change. You may need to explain this to the financial institutions when you present the Grant in order to take control of the Testator’s testate estate.

6. After the Grant of Probate is issued, required notices must be sent to appropriate persons again within 30 days from the date of issue.

Obtaining a Grant Probate is a crucial step and is generally a prerequisite in the estate administration process. Hence it is important that it be done correctly. CONGRATULATIONS! You can now carry out your Role.

Grant of Administration

A Grant of Administration is a court-issued document granting an Applicant the authority to administer an estate when there is a deficient Will or when no valid Will exists. Generally, when the Will is deficient, or in the absence of it, no one has the authority to administer the estate.  To put it simply, the Grant of Administration gives an Applicant the authority to deal with the estate of the Deceased person as a Personal Representative or an Administrator. If the Grant of Administration is being sought because the deceased did not leave a Will, the intestate estate will be distributed according to the provisions of the Wills and Succession Act Part 3.

When to seek a Grant of Administration?

As previously alluded, there are several scenarios where the appropriate Application may probably be for a Grant of Administration. To reiterate, below are the common scenarios:

1. There is a valid Will, but the Will did not appoint any Personal Representative or Executor; or
2. There is a valid Will, but the named Personal Representative or Executor is unable or unwilling to act; or
3. The Will does not address the disposition of the entirety of the estate; or
4. There is a Will, but the court has not declared it valid; or
5. The Deceased person has not made a Will at all.

Most of the Grant of Administration application we have worked on is a result of the Deceased person not having a Will.

Who may Apply for a Grant of Administration?

The Estate Administration Act section 13(1)(a) and the Wills and Succession Act grant first to last priority of persons who can apply for a Grant of Administration. Please refer to the list below, which is a substantial reflection of the following:

section 13(1)(a):, if a will exist in descending order of priority to:

1. A personal representative named in the Will,
2. A personal representative appointed by the person expressly authorized in the will to appoint a personal representative;
3. A residuary beneficiary named in the Will;
4. A life tenant of the residue in the Will;
5. A beneficiary under an intestacy if the residue is not completely disposed of in the Will;
6. A beneficiary receiving a specific gift in the Will;
7. A contingent beneficiary of the residue in the Will;
8. A contingent beneficiary of a specific gift in the Will;
9. The Alberta Government;

section 13(1)(b): if no will exist in descending order of priority to:

1. The surviving spouse or surviving adult interdependent
2. A child of the deceased person;
3. A grandchild of the deceased person;
4. A descendant of the deceased person other than a child or grandchild;
5. A parent of the deceased person;
6. A brother or sister of the deceased person;
7. A child of the deceased person’s brother or sister if the child is a beneficiary under the intestacy;
8. The next of kin of the deceased person determined in accordance with sections 67 and 68 of the Wills and Succession Act who are beneficiaries under the intestacy and who are not otherwise referred to in this clause;
9. A person who has an interest in the estate because of a relationship with the deceased person;
10. A claimant Against The Estate;
11. The Alberta Government;

What is the Process of Obtaining a Grant of Administration?

The process of obtaining a Grant of Administration is equally complex and time-consuming compared to a Grant of Probate. To give you an idea about how to prepare for your Grant of Administration Application, we have enumerated the necessary steps involved in the process. Please refer below:

1. The Applicant, who is any of the persons who have priority to apply for the Grant of Administration, must gather information about the Deceased person, the beneficiaries and the inventory of assets and liabilities of the Deceased as well as other relevant documents that may be useful to advance the application;
2. Then, prepare all the required court documents, commencing from the Administration Grant Application, Eligibility form, Inventory of Assets and Liabilities, and other various forms applicable to your circumstances. These documents may be required to be sworn, affirmed or certified;
3. The next step is a publication of a Notice to Creditors and Claimants in a newspaper. This step is optional and is extra protection for the Applicant from being personally liable to potential claims against the intestate estate. If taking this step, the Applicant then needs to complete a Statutory Declaration of Publication, which will be included in your Application.
4. The Application can then be submitted to the Surrogate Court through the regular application by sending the original documents using our courier services.
5. The court will review the application. The court clerk does the first review and then passes it to the justice for the second review. If it is incomplete, the court may return your Application for correction or reject it. However, if your application is complete and the information you provided is in order and satisfactory to the justice, the Grant of Administration may be issued.Note: Pay particular attention to the type of Grant that was issued. As previously mentioned, Grants may be general, unlimited and unrestricted or restricted and limited in purpose and time.

6. After the Grant of Administration is issued, required notices must be sent again to appropriate persons within 30 days from the date of issue.

Obtaining a Grant of Administration is a crucial step and is generally a prerequisite in the estate administration process. Hence it is important that it be done correctly.

Now What?

So you have been confirmed as the Personal Representative or Executor through a Grant of Probate or as the Personal Representative or Administrator through a Grant of Administration. CONGRATULATIONS! You can now carry out your Role as a Personal Representative.

Take heed and remember, however, that there are mandates and commitments that are expected of you. To walk you through a Personal Representative’s roles, duties and responsibilities, please refer to the Estate Administration Act Part 1 from section 5  to section 8 – the Role of a Personal Representative; and the activities set out in its Schedule.

Our Probate and Estate Administration Lawyers in Edmonton can provide sound legal advice and proper guidance. Contact the Probate and Estate Administration Lawyers at Edmonton Law Office for help with the probate of an estate. We’re only a phone call away at (780) 784-6666.