What is Probate?
As a Wills and Estates lawyer, the two questions I’m most frequently asked are “What is probate?” and “When do I have to go through probate?”. I’m glad people ask those questions because the legal terminology that surrounds the Probate process can be difficult to understand if you don’t have a background in Wills & Estates law.
To make things easier, we’ve put together a list that defines, in plain English, some of the Probate law terminology you’ll encounter most frequently.
Estate administration is the process of gathering and distributing a deceased’s assets, or Estate. Oftentimes, in order to administer an Estate, obtaining a Grant of Probate or a Grant of Administration is necessary. Sometimes, an Executor can administer an Estate without obtaining any sort of grant from the Court. The law surrounding Estate administration is often referred to as “Estate Law” or “Probate Law”.
Grant of Probate
In Alberta, a Grant of Probate is a one-page document signed by a Justice (similar to a judge) of the Court of Queen’s Bench of Alberta.
A Grant of Probate is the Court’s “seal of approval” that affirms the validity and legitimacy of a deceased’s last Will. The Grant also serves as permission for the Executor to go ahead and distribute the Estate.
Practically speaking, banks, the Alberta Land Titles Office, and other financial institutions don’t typically release a deceased’s funds or lands to an Executor until a Grant of Probate is provided.
Grant of Administration
Conceptually, a Grant of Administration is quite similar to a Grant of Probate. It is issued by the same Court in Alberta, and it authorizes the Executor to fulfill their duties to the Estate.
The difference between a Grant of Probate and a Grant of Administration is that a Grant of Administration is necessary when someone dies without leaving a Will.
While the application process for a Grant of Administration differs somewhat from the probate application process, the two documents ultimately serve the same purpose.
“Intestate” refers to a deceased individual who died without leaving a valid Will, or, an Estate where the deceased neglected to leave a valid Will. Generally speaking, intestate Estates in Alberta require a Grant of Administration.
If an individual dies intestate, the law, specifically the Wills and Succession Act and the Estate Administration Act, determines who is entitled to act as the Estate’s Executor, and who the beneficiaries of the Estate are.
Someone who dies leaving a valid Will is said to have “died testate”. Similarly, an Estate where the deceased left a valid Will is called a “testate Estate”. Many testate Estates require the Executor to apply for a Grant of Probate, however, a probate application is not always necessary.
An Executor is responsible for locating, gathering, and distributing the deceased’s property. If the deceased died testate, the Executor is likely appointed by the Will, However, if the deceased died intestate, the legislation in Alberta creates a priority sequence of who is entitled to act as Executor. The terms “Executor” and “Personal Representative” are used interchangeably, however, the formally correct term in Alberta is “Personal Representative”.
The beneficiaries of the Estate are the individuals or charities entitled to receive the Estate assets. If the deceased died intestate, the beneficiaries are determined in accordance with the Alberta Wills & Estates legislation. If the deceased died leaving a Will, the beneficiaries are usually determined in accordance with the Will.
The forms that comprise an application for a Grant of Probate or a Grant of Administration each have an “NC number”. For example, the form listing the assets and liabilities of an Estate is called an “NC 7”. It’s essential that the Executor, or the Executor’s lawyer, accurately completes and submits all necessary NC forms when applying for a grant.
The Surrogate Court is tasked with issuing Grants of Probate and Administration in Alberta. While the Surrogate Court only handles Wills & Estates matters, it’s also a division of the Court of Queen’s Bench which hears a wide range of matters from criminal to corporate law.
The Surrogate Court has clerks who review applications for Grants of Probate or Administration. Once the clerk has reviewed the application for errors, omissions, and mistakes, the application is sent to a Justice for final review. Both the clerks and the Justices have the authority to “bounce” or reject an application, which is just one reason why it’s helpful to use the services of an Alberta Wills & Estates lawyer when applying for a Grant.
The Alberta Surrogate Court charges probate fees based on a sliding scale that caps out at $525.00. The fee is based on the value of the Estate but never exceeds $525.00. A probate lawyer will also charge legal fees as part of the probate application process. West Legal provides probate services on a flat-rate basis, so you can be sure there won’t be any hidden costs.
Currently, there is no Estate tax or inheritance tax in Alberta, however, an Estate may be liable for capital gains taxes and income taxes. It’s important to consult with both a Wills & Estates lawyer and a tax professional to ascertain the extent of an Estate’s tax liability.
A proposed distribution is a table that details the proposed amounts and dates of Estate distributions. It is typically provided to beneficiaries along with a “release”.
A “release” is a document that is solemnly affirmed or signed under oath by an Estate beneficiary. By signing the release, the beneficiary confirms that they have received financial statements for the Estate which cover the time period named in the release. The beneficiary also confirms that they approve the proposed distribution attached to the release and the enclosed financial statements. Additionally, the beneficiary agrees that they will not hold the Executor liable for their handling of Estate assets during the time period named on the release.
Questions about the Probate Process in Alberta?
Whether you’re an Executor, a beneficiary, or simply have questions about the probate or Estate administration process, it’s important that you connect with a qualified Wills & Estates lawyer.
The Wills & Estates lawyers at West Legal offer free-of-charge in-person or telephone consultations to estate Executors. We also advise beneficiaries or family members of the deceased who wish to ascertain their rights and responsibilities during the Estate administration process. We welcome you to reach out to West Legal—our Wills & Estates team can help you streamline and simplify the often complicated Estate administration process.