A Grant of Probate proves the Personal Representative acting on behalf of the Deceased has the right to administer the Deceased’s Estate
In Alberta, unless an Estate is valued at $60,000.00 CAD or less, the Personal Representative (also called the Executor) generally needs to obtain a Grant of Probate from the Surrogate Court to manage the deceased’s Estate. Although a Personal Representative’s authority to act begins immediately upon the death of the testator (the person who wrote the will), a Grant of Probate formally confirms their legal right to administer the Estate. Once granted, the document can be presented to banks and other institutions as proof of authority to manage the deceased’s assets.
Probate is the legal process by which the court verifies the testator has passed away, the testator authored the Will, and the Will is valid. Applications for a Grant of Probate must also be served on the known heirs and successors named in the Will.
Administering an Estate in Alberta involves several key steps:
identifying and securing the deceased’s assets, including property, bank accounts, and investments (excluding assets that pass outside the estate, such as jointly-owned property or assets with designated beneficiaries);
determining whether a Grant of Probate is required;
paying the deceased’s debts and any taxes owed; and
distributing the remaining assets to the beneficiaries named in the Will.
Free Consultation
Acting as the Personal Representative for an Estate can be stressful. There is a lot of work to do, and it is important to have a legal support system in place to guide you through the process of obtaining a Grant of Probate and administering the deceased’s Estate.
At Bodnaruk Law, we charge an affordable flat fee to obtain a Grant of Probate, while other law firms often base their legal fees on a percentage of the value of the deceased’s Estate.
We are open and transparent about the Estate administration process and our fees. For more information on how we can assist you, please contact our office for a free consultation at: 403-288-0009 or by email at: murray@bodnaruklaw.com
Reasons to Obtain a Grant of Probate
To Deal with Interests in Land
It is usually not possible to transfer, encumber, or otherwise deal with the real property of the deceased without a Grant of Probate. If real property is owned outside the jurisdiction where the Testator died, it will likely be necessary to obtain a Grant of Probate in that other jurisdiction. If the real property is located within Canada, this can be done by resealing the Grant of Probate and obtaining an additional Grant of Probate in the other jurisdiction.
To Satisfy Third Party/Financial Institution Requirements
Financial institutions and other third parties usually require a Grant of Probate before transferring property (accounts, shares, etc.) into the name of the Personal Representative. This is because a third party who relies on a Grant of Probate is generally protected from liability should it later be determined the assets were transferred to the wrong person.
To Protect the Personal Representative from Potential Liability
When a Grant of Probate has been obtained, it cannot be disputed unless there is a successful court application to set aside the Grant. If a Grant of Probate has been issued, the Personal Representative will be protected from the claims of others who allege to have authority under another Will or testamentary document. This protection does not extend to a Personal Representative if there was fraud in obtaining the Grant of Probate, or if there is negligence in carrying out the Personal Representative’s duties.
To Ensure Certain Claims Expire
Spouses and dependents may pursue claims for a greater share of the Estate than were provided in a Will. A spouse or adult interdependent partner may seek family maintenance and support under Part 5 of the Wills and Succession Act and the Family Property Act, even if support and maintenance are not mentioned in the deceased’s Will and even if there is no Court Order for maintenance and/or support.
To Conduct or Defend Litigation on Behalf of the Estate or the Deceased
A Grant of Probate is required to allow the Personal Representative to pursue or defend litigation on behalf of the Estate or the deceased.
To Resolve Disputes Over the Validity of a Will
A Will, and the appointment of a Personal Representative, may be invalid for any number of reasons, including:
- there is a more recent Will that revokes the existing Will;
- there is a Codicil to the existing Will that appoints a different Personal Representative;
- the Testator lacked capacity at the time they made their Will;
- the Testator was subject to undue influence; or
- there were errors in the execution of the Will that cannot be rectified by the court.
Applications for Grants of Probate
An application for a Grant of Probate is normally made in the province where the deceased resided or was domiciled at the time of death. Legislation may also specify the judicial district where the application should be made – including the judicial district where the deceased resided. If the deceased was not a resident in the province, the application will usually be made where the deceased’s property is located.
Applications for Grants of Probate can now be digitally filed at the Alberta Surrogate Court if a law firm has been retained to obtain the Grant of Probate. Digitally filed applications do not require a court appearance before a Justice of the Surrogate Court, and do not require time-consuming paper-based applications or the physical mailing of Notices to Beneficiaries. Digital filing significantly reduces the time required to process a Grant of Probate application and obtain the Grant.
Once the application is filed, court officials review the application and supporting documents to ensure all required information is included and that the Will has been executed in accordance with the requirements of the Province of Alberta. The lawyer for the Estate is contacted if there are deficiencies that must be addressed. Amended or additional documents may need to be filed.
Once the court is satisfied the application is complete, the court will issue the Grant of Probate. This non-contentious process for obtaining a Grant of Probate is called “proving the Will in common form”. Although a Will proved in common form is sufficient to protect a Personal Representative or third party who relies on a Grant of Probate, the Will can still be challenged at a later date.
A Will may also be proved in solemn form. A Will proved in solemn form can only be challenged later in limited circumstances. A Personal Representative will want to consider proving a Will in solemn form if there is a dispute over the validity of the Will or there is a question as to the validity of the Will the Personal Representative wants reviewed by the court. If there is a dispute over the validity of a Will proved in common form, an application may be made to prove the Will in solemn form.
When a Personal Representative obtains proof in solemn form, the Will is protected from a later action to revoke the Grant of Probate unless it is discovered that the Will had been revoked or the Grant in solemn form was obtained by fraud. Due to the permanent nature of the Grant proved in solemn form, the process is more formal.
Proof in solemn form requires additional steps and costs. A formal court hearing before a Justice of the Surrogate Court is required. It may also require more onerous notice requirements and witnesses may need to be called to testify.
Assets that are not subject to Probate
Assets with joint ownership with rights to survivorship, like joint bank accounts and real estate held as joint tenants, as well as assets with designated beneficiaries like RRSPs, RESPs, TFSAs, and the proceeds of life insurance policies, are not subject to Probate and thus, do not have to wait for Probate to be distributed.
When a Grant of Probate May Not be Required
There are limited situations where it may not be necessary to obtain a Grant of Probate. Banks or other financial institutions may agree to release assets if the value of an Estate is under a certain dollar amount, and if the Personal Representative of the Estate provides the relevant information about the Estate assets and distribution and agrees to sign a release of indemnity.