Out of Province Probate

If a loved one passes away in a different province, can the Estate be ‘probated’ in Alberta? The short answer is that it depends. Here we’ll cover some potential scenarios in this article that will give you a fuller understanding of whether you should reach out to an Alberta Wills & Estates lawyer or an out-of-province lawyer, to assist you with probate.

I Live in Calgary, but the Deceased Lived Elsewhere. Now What?

We frequently receive calls from individuals who live in Calgary and have been appointed as the Executor of a parent’s Estate. However, in some cases, the Executor’s parent has passed away in, for example, Vancouver or Saskatoon. It’s entirely sensible for you to reach out to us or another Calgary probate lawyer, even if your loved one passed away out-of-province. We may still be able to help you probate the Estate in Alberta, and if we can’t, we can explain why the law prevents us from doing so, and oftentimes we’re able to refer you to a competent out-of-province probate lawyer.

Is Alberta the Best Place to Probate a Will?

Let’s say, for example, an uncle has passed away in Kelowna, B.C. The Will appoints his niece who lives in Calgary to act as Executor. Why might the niece want to proceed with probate in Alberta?

There are two primary reasons one might want to apply for probate in Alberta rather than in another jurisdiction:

1. Convenience. If you live in Calgary, it’s much easier to coordinate a probate application with a Calgary Wills & Estates lawyer than to liaise with an out-of-province lawyer by telephone, email, and registered mail.
2. Cost. Alberta has one of the lowest probate fee structures in the country. Alberta Courts never charge more than $525.00 to file a probate application. For a $1,000,000.00 estate, probate fees in Alberta would be $525.00, while a similar-sized Estate in B.C. would likely incur court filing fees in the range of $10,000.00. As you can see, the disparity between the two provinces’ probate application fees is vast—some would even argue that B.C.’s probate fees are a ‘hidden estate tax’. Whichever way you characterize it, 99% of the time it’s cheaper to file a probate application in Alberta than it is to file one in B.C., and the same can likely be said for several other provinces as well.

What does Alberta Law Say?

The Alberta Surrogate Rules outline the technical and procedural requirements for probating an Estate in Alberta. Specifically, Rule 6(1) says that

an application for a grant must be filed at the judicial centre that is closest by road to the location where the deceased resided on the date of death unless the court permits otherwise.”

Rule 6(1) seems fairly straightforward—figure out where the deceased lived, and then find the nearest judicial centre (i.e. Calgary, Edmonton, Red Deer, Medicine Hat, etc.) and file there. Things may get a little tricky if the deceased lived in say, Ponoka, Alberta—is that closer to the Wetaskiwin Judicial Centre or the Red Deer Judicial Centre? A few minutes on Google Maps, however, should resolve any difficulty on that front.

However, there’s more—Rule 6(2) says that

if the deceased resided outside Alberta immediately before dying, an application for a grant may be filed at the judicial centre that is closest by road to a location in Alberta where the deceased had property on the date of death.” In other words, if the deceased passed away while living in Winnipeg, but owned a house in Calgary, the Executor can potentially file for probate in Calgary.”

When Can I Apply for Probate in Alberta?

There are essentially 4 scenarios where an Executor can apply for a Grant of Probate or a Grant of Administration in Alberta:

1. The first, and most obvious scenario is when the deceased resided in Alberta prior to death—check the deceased’s last physical address to be sure, and find documentation to back it up if there’s any doubt;
2. The second scenario where a probate application can be made in Alberta is where the deceased resided outside of Alberta, but the deceased owned property in Alberta—typically, this scenario will apply to the specific property located in Alberta, and probate may still be necessary in another province for any property located outside of Alberta;
3. The third scenario where a probate application can be made in Alberta is if the Court permits it—in other words, the Courts can grant you permission to file for Probate in Alberta, even if the deceased resided outside of Alberta and most of his or her property was located outside of Alberta. This option is only viable in very limited circumstances—the cost and time involved in a court application, and the potential for the Court to decline your request, makes this remedy worthwhile only in extenuating circumstances; and
4. The fourth scenario is a sort of catch-all grey area—explanatory notes can be made by your Wills & Estates lawyer on the paper probate application itself. Sometimes, and in very limited circumstances, a Justice of the Court will permit an application if the deceased lived outside of Alberta if other conditions are met—again the scope of this option is very limited and is not recommended except in circumstances that would render an application outside of Alberta nearly impossible.

When Can’t I Apply for Probate in Alberta?

As a general rule, with limited exceptions, if the deceased resided outside of Alberta immediately prior to their death, and didn’t own any property in Alberta, a probate application in Alberta is unlikely to succeed. There may be small exceptions to this rule, for example, if it could be proved that the out-of-province deceased was still a legal Alberta resident and was merely vacationing out-of-province, the Court may grant permission to proceed with an application in Alberta.

Your Alberta Probate Lawyers

If you’re an Executor or the loved one of a deceased, and you’re not sure whether you can go ahead with probate in Alberta, or, if you’re sure the deceased lived in Alberta prior to death, but you’re unsure of which Judicial Centre to file at, reach out to the experienced probate lawyers at West Legal.

We’d be happy to help you probate your Alberta Estate, but we’ll also give you an honest assessment of whether or not you’ll need to apply for probate in another province, and if you do need to file out-of-province, we can point you in the direction of a probate lawyer outside of Alberta and assist you with notarizing any documents you may need as part of the out-of-province probate application process.

Speak to a Calgary Probate Lawyer