Is Probate Really Necessary?

Probate in Alberta: Is It Required?

Probate is a word that many people don’t want to hear. Not only is it associated with death, but the probate process can also be time-consuming and costly. Probate is avoidable in certain circumstances, however, it’s required for most Estates in Alberta. So why is probate in Alberta required? While the probate process may seem costly and inefficient, there are several good reasons for the probate requirement that we’ll address below.

Imagine a Scenario Where…

Imagine a scenario where someone passes away. Let’s imagine that the deceased was quite elderly and in poor health. The deceased didn’t have a spouse or children, and his only relatives were a niece and nephew. The niece and nephew don’t get along very well, but each of them helped the deceased maintain his properties and with his day-to-day responsibilities.

The deceased’s nephew finds an original Will in the deceased’s vacation home, a home that the deceased’s nephew maintains for the deceased and vacations in on holidays. The Will is quite old, but it’s an original document that names the nephew as the deceased’s sole beneficiary. The next morning, the nephew goes to the deceased’s bank, shows them the Will, and the bank writes the nephew a cheque for the $100,000.00 in the deceased’s bank account.

A few weeks later, the deceased’s niece finds an original Will that’s one-year-old, in the deceased’s home. The Will leaves the deceased’s entire Estate to the niece. When she goes to the bank to access the deceased’s funds, there’s nothing left, because the nephew has, albeit innocently and in good faith, withdrawn the account balance.

The Benefits of Probate

While the above tale creates an unfortunate result for the niece, it’s unlikely that such an occurrence would happen in Alberta today. The reason being is that most financial institutions require a Grant of Probate before they are willing to release any funds to the Estate Executor or its beneficiaries. While fictitious, the above anecdote illustrates at least one possible rationale for the probate process.

Confused Woman

So, Why is Probate in Alberta Required?

Probate Confirms the Validity and Legitimacy of the Deceased’s Last Will

The Wills & Succession Act, and other Wills & Estates laws in Alberta, create strict requirements as to what constitutes a valid Will. Before issuing a Grant of Probate for a particular Estate, a Justice (known as a judge at other levels of court) reviews the Will and confirms that it meets the legal requirements of a valid Alberta Will.

Probate also confirms the legitimacy of the deceased’s Will. As part of the probate application, the Estate Executor must swear an affidavit, under oath, that they have conducted a thorough search for the deceased’s last Will and that they believe the Will being probated is indeed the deceased’s last Will.

Probate Protects the Interests of Dependents, Partners, Spouses, and Loved Ones

One of the most important aspects of a probate application in Alberta is the notice process. Firstly, all Estate beneficiaries must be provided with notice of the deceased’s death and a copy of the probate application. The probate application contains a complete detailing of the deceased’s assets and liabilities, which protects Estate beneficiaries from an unscrupulous Executor who may try to underrepresent the value of Estate assets, or neglect to inform the beneficiaries of their entitlements altogether.

Additionally, probate protects the deceased’s spouse, minor children, common-law partner, and other dependents. In order to obtain a Grant of Probate, an Executor must serve proper notice on all individuals who are considered by law to have a potential interest in the deceased’s Estate. Individuals entitled to notice may include a common-law partner, a minor child who didn’t receive a share of the Estate, and, in some cases, a recently separated spouse.

Probate Helps Prevent Fraudulent Transfers of Land

Alberta has a centralized, or torrens, land title registry system whereby a ‘master’ Certificate of Title, or deed, to each property in Alberta is stored. When a property changes hands, the central registry must be updated. This is typically done through paper filings with the Alberta Land Titles Office.

The Alberta Land Titles Office requires a court-certified copy of the Grant of Probate in order to transfer land from a deceased person to an Estate Executor, which ultimately protects the Estate’s legitimate beneficiaries. Without the probate requirement, it wouldn’t be difficult for an ill-intentioned individual to fraudulently transfer a deceased’s home or land into their own name by swearing a false affidavit claiming that they were the Estate’s legitimate Executor.

Probate Helps Ensure Creditors’ Debts Are Repaid

We’ve all heard jokes or half-truths about ‘spending it all before you die’ and ‘cutting the last cheque to the undertaker’. While it’s important to enjoy life, some people really do amass significant debt in the years leading up to death. In some cases, they do so to supplement an insufficient pension income, but in other cases, it’s simply haphazard spending and indulgence that leaves an Estate with significant debt.

Whatever the circumstances, it’s important to a healthily functioning economy that creditors have an assurance of debt repayment. Probate, and the associated ‘notice-to-creditor’ requirements that the process involves, ensures that creditors are repaid from Estate assets before beneficiaries receive their shares of the Estate.

Probate Reduces the Risk of Lawsuits Against Executors and Financial Institutions

If every bank, investment brokerage, life insurance company, and government institution released funds to an Estate Executor without first requiring a Grant of Probate, they would open themselves up to countless lawsuits from legitimate Executors and beneficiaries who had seen their Estate funds released to ill-intentioned or mistaken ‘Executors’.

While you may not find sympathy for the big banks when they face a lawsuit, a Grant of Probate also protects the Estate Executor from successful legal claims. A Grant of Probate assures the Executor that the Court has approved the distribution of the Estate. Additionally, the detailed recordkeeping and paper trail necessitated by the Probate process protect the Executor in the event of any claim or lawsuit against them or the Estate.

A Calgary Probate Lawyer

We’re Here to Guide You Through the Challenges of the Probate Process

Hopefully, this article has given you an increased understanding of why Probate is required. If you’re an Executor, the experienced Wills & Estates lawyers at West Legal can guide you through the probate process. We offer professional, friendly, timely, and knowledgeable legal services that you can count on. Contact us today for your FREE 1-hour consultation with one of our probate lawyers.

Contact a Calgary Probate Lawyer today or 403-723-0175 to get started.