It goes without saying that there are misconceptions about various topics of all kinds. However, certain topics seem to attract more myths, urban legends and misconceptions than others. How many people do you know who don’t have a horror story to tell about a friend or relative who has had a root canal or who was audited by the CRA?
Probate is another topic that seems to fall into that basket of topics that attract negative sentiment and, frankly, myths and misconceptions.
Estate Administration and Probate
Estate administration is never going to be an enjoyable or ‘fun’ process. Probate and other aspects of Estate administration are, of course, only necessary when someone has passed away. On top of the grief that attaches to the loss of a loved one, friend, or family member, many people have also had negative, and even downright awful experiences with applying for a Grant of Probate or otherwise administering an Estate.
Myths and Misconceptions
Aside from the natural grieving process that we experience when someone passes away, applying for Probate need not be a negative process. Sure, the time, expense, and work involved in a probate application are undeniable, but the myths and misconceptions that people hold about probate, however well-intentioned, can make things seem more daunting than they actually are.
Here are ten of the most common myths, misconceptions, rumours, and even urban legends that we, as Wills & Estates lawyers, hear from clients, friends, and family members:
Alberta Probate Fees Are Expensive
One of the most common misconceptions about probate, at least in Alberta, is the notion that probate fees are expensive. That’s simply not the case. In fact, the Court filing fee upon application for a Grant of Probate in Alberta caps out at a whopping $525.00 dollars. While $525.00 certainly isn’t insignificant, it’s a tiny, tiny fraction of the value of most Estates.
Probate Should Be Avoided at all Costs
One of the biggest dangers of Estate planning is probate avoidance. Undoubtedly, there is a place and a time for creative probate avoidance. For example, if someone has received a terminal diagnosis from their physician, or is quite elderly, it may be worth adding an adult child to the title of their home to avoid probate. However, in many, if not most, other circumstances, the downsides of probate avoidance outweigh the benefits. The Estate Planning lawyers at West Legal can help you implement the probate avoidance measures that are prudent based on your circumstances while steering you away from probate avoidance strategies that may have negative consequences to you.
Probate is Complicated
This is more of a misconception than a myth, and the reality is that probate applications can be complicated, especially for laypeople who don’t file them regularly. That said, the probate lawyers at West Legal have experience with the ‘ins and outs’ of probate applications and we strive to make the process as streamlined and seamless as possible for our clients.
You Need a Lawyer to Complete a Probate Application
There is no legal requirement in Alberta that a probate application must be drafted or filed by a lawyer. Some Executors do complete a probate application on their own and succeed in obtaining a Grant of Probate without ever using a lawyer. That said, we certainly don’t recommend it. Not only will an experienced probate lawyer streamline the probate process, but it also takes the burden, effort, and potentially some of the liability off of the Executor’s plate. A good probate lawyer will also look for any red flags, ensure the accuracy of the application, serve all proper notices on interested parties, and advise the Executor as to whether probate is, in fact, necessary in the circumstances.
Probate Takes a Long Time
Probate can take a long time if the courts are backlogged, or there are errors in the probate application. However, at West Legal, we focus on expediency and efficiency as much as possible. In most cases, once an Executor provides us with all requisite information, we have their probate application drafted within 2 weeks. Once it’s signed, we typically submit the application to the Court within 48 hours. Once the Court receives it, it may take up to 6 months to process the application. However, over the past year, many of the applications that we’ve filed in Calgary have been issued within 6 weeks of filing. While there’s no guaranteed timeline, we do our utmost to ensure you receive your Grant of Probate in a timely manner.
Probate is Unnecessary if the Deceased Left a Will
While a valid, up-to-date Will is the cornerstone of effective Estate planning and can be helpful in avoiding probate, many Estates still require a Grant of Probate, regardless of whether or not the deceased left a valid Will. Although in most circumstances, a Will doesn’t remove the need for a probate application, it makes the Estate administration process easier on your Executor, loved ones, and family. A Will also helps to ensure that your wishes and intentions are ultimately carried out, regardless of whether or not probate is necessary.
You Have to go to Court to get a Grant of Probate
In most cases, a probate application is a ‘desk’ or paper application that is submitted to the Court. Only in extenuating circumstances, or when an Estate is subject to litigation, does a Wills & Estates lawyer actually attend court or make verbal submissions to a judge or Justice.
Probate Lawyers are Expensive
Legal fees for probate vary between law firms, and they can be expensive, especially for larger estates. At West Legal, all of our flat-rate or percentage-based legal fees for probate applications are posted on our website. We strive to be transparent with our clients and we ensure that we charge a fair fee in light of the work involved in your application. We don’t charge any hidden fees—the flat rate or percentage-based legal fees posted on our website are what you can expect to pay, along with the court filing fee and our out-of-pocket disbursements such as registered mail, or posting a newspaper notice to creditors. If you’re the Executor of a substantial Estate, please reach out to us for a quote on legal fees, as we cap our total legal fee once the estate reaches a certain size.
We’re Here to Answer Your Probate Questions
Hopefully, this article clears up some misconceptions about the probate process that you may have encountered. If you’re an Executor, or the loved one of a recently deceased individual, we welcome you to reach out to the probate lawyers at West Legal. We strive to offer affordability, transparency, timeliness, and sound legal advice to our clients throughout the Estate administration process. If you’d like to get started, contact our office for a free-of-charge, no-obligation consultation.