If you’ve been appointed as the Executor or Personal Representative of an Alberta Estate, you may need to apply for a Grant of Administration or a Grant of Probate. Many Executors wonder whether they can avoid hiring a lawyer by applying for the necessary Grant themselves. The short answer is yes; an Executor can apply for a Grant Probate or Administration without using a lawyer. Before applying for a Grant on your own, however, you should consider the advantages and disadvantages of doing so.
First Things First
If you aren’t quite sure what a Grant of Probate or Administration is, you can find an in-depth article on probate terminology here.
However, to briefly summarize for the purpose of this article, a Grant of Probate is a legal document signed by a Justice of the Surrogate Division of the Court of Queen’s Bench of Alberta which confirms the validity and legitimacy of the deceased’s Last Will and the Executor’s authority to distribute the deceased’s Estate.
Financial institutions typically won’t release the deceased’s funds to the Executor until a Grant of Probate or Administration is provided. Similarly, any land held in the deceased’s sole name cannot be transferred or sold without a Grant.
A Grant of Administration serves the same purpose as a Grant of Probate, however, unlike a Grant of Probate, it is only required when the deceased didn’t leave a Will. When someone dies leaving a valid Will, their Estate is called a Testate Estate and requires a Grant of Probate, however, when someone dies without leaving a Will, their Estate is called an Intestate Estate and requires a Grant of Administration.
Now that we’ve covered the basics, let’s address the advantages and disadvantages of applying for a Grant of Probate or Administration without using a lawyer in Alberta:
Advantages of Probate Without a Lawyer
Saving money is the primary advantage of applying for probate without using a lawyer. The Estate can avoid legal fees if the Executor applies for a Grant without using a lawyer, however, the Estate will incur probate court fees regardless of who applies.
While a probate lawyer’s primary job is to provide you with legal advice and complete the probate application on your behalf, it’s worth keeping in mind that you ultimately instruct the lawyer and not vice versa. However, some Executors prefer to preside over the application process from start-to-finish without the advice and assistance of a lawyer.
Executors may find it more convenient to complete the probate application process on their own timeline, rather than having to schedule appointments and attend their lawyer’s office.
Some Executors have had negative experiences with lawyers in the past and may be worried that a lawyer will delay the probate process with a lack of promptness. As such, some Executors may find it more expeditious to apply for a Grant without using a lawyer.
Disadvantages of Probate Without a Lawyer
At first glance, an Executor who applies for probate without using a lawyer’s services will save money on legal fees.
However, a competent Wills & Estates lawyer will have a deep understanding of the probate application process and will ensure that they’ve ‘crossed their t’s and dotted their i’s’ when applying for a Grant. A prudent probate lawyer will also guide you through the Estate distribution process so that you’re certain you’ve fulfilled all of your obligations to the Estate.
Without a probate lawyer, you risk ‘missing something’ and thereby increase the likelihood of a lawsuit against yourself or the Estate. Any type of legal claim against the Estate or its Executor, regardless of whether it’s successfully defended, will likely incur lawyer’s fees in excess of the cost of a lawyer-drafted probate application.
Retaining an Alberta Wills & Estates lawyer to advise you and to apply for probate on your behalf actually increases your control over the Estate Administration process.
While your lawyer will advise you and prepare legal documents for you, the decision-making responsibility rests with you. Your probate lawyer will help you stay in the ‘driver’s seat’ when dealing with Court Clerks, the Land Titles Office, potentially disgruntled beneficiaries, family members, and outside claimants. You’ll also have a trusted advisor who will enhance your understanding of probate law so that you can confidently direct the Estate Administration process.
Convenience is one of the biggest advantages of having a lawyer attend to your probate application. The probate lawyers at West Legal provide you with lists of all required documentation, draft the probate application documents for you, properly serve all notices on interested parties as required by law, submit your application to the Court, file any necessary documentation with the Land Titles Office, communicate with the Public Trustee’s Office when necessary, and obtain releases from all Estate beneficiaries. We also communicate with Estate creditors where appropriate and post notices for potential creditors, when required by law.
Executorship comes with considerable responsibility, and, frankly, lots of work. Hiring a lawyer to advise and assist you with the legal aspects of that work will exponentially reduce the hassle and stress that rests on your shoulders.
Although some lawyers may lack promptness, a reputable probate lawyer will likely save you time. Estate lawyers have incentive to get your application completed promptly—they typically don’t get paid until the Grant is issued!
Additionally, and with good reason, the Surrogate Court is extremely particular about the details contained in an application, and it’s not uncommon for self-represented Executors to have an application returned to them for corrections multiple times. A prudent probate lawyer will ensure that the application is accurate, and if it is returned for corrections, they will know how to promptly fix and re-submit the application.
While some lawyers do take on too many files and neglect to complete work in a timely manner, the probate lawyers at West Legal are committed to preparing your probate application within two weeks of receiving all necessary information from you.
Should I Use a Lawyer for My Probate Application?
If you’re an Executor, the experienced Wills & Estates lawyers at West Legal can help you determine whether a Grant of Probate or Administration is necessary in your circumstances and if it is, whether it’s best for you to use a lawyer to complete the application on your behalf.