Questions and resources

Probate is the Court step that confirms a will is valid and that the executor named in it has the authority to deal with the estate. In Alberta the application goes to the Court of King’s Bench, and the Court issues a grant of probate. Banks, the land titles office and others rely on the grant before they hand over money or transfer property.

Usually anything the person owned in their own name: a house or land, bank accounts, investments, shares and vehicles.

Some things pass outside the will and the estate, so they normally don’t need probate:

• RRSPs, RRIFs, TFSAs, pensions and life insurance that name a living beneficiary
• property owned jointly (as joint tenants) with someone who survived them
• gifts the person made while they were alive, and property already held in a trust

No. A grant of probate is needed when someone asks for proof that the executor has authority to deal with the estate. Most often that is the land titles office, to transfer a house or land that was in the person’s name alone, or a bank holding a larger account.

Property owned jointly with someone who survived them, and RRSPs, RRIFs, TFSAs, pensions and life insurance that name a living beneficiary, usually pass without a grant.

Even without a grant, the executor must still send certain notices to the beneficiaries and family.

If the estate owes more than it owns, an application may still be needed, but the steps are different. Send me an email before you pay anyone.

Often they get stuck. A bank, pension plan or the land titles office wants proof that the person has died, that the will is valid and the last one, and that the executor is the right person to deal with. They also want to be protected if someone later challenges the will.

The grant of probate gives them that proof. Without it, many institutions will simply refuse to release money or transfer property.

• The executor (Alberta law calls them the personal representative) protects what the person owned, decides whether probate is needed (a lawyer can help with this), signs the application, pays the debts and taxes, and then pays out the beneficiaries.
• The lawyer prepares the Court documents and the notices to beneficiaries and family, files them, and advises the executor along the way.
• The Court reviews the application and issues the grant.
• The beneficiaries receive notice of the application and, at the end, their share of the estate.

Even when probate isn’t strictly required, an executor may apply so the Court confirms the will is valid and the last one.

When applying for a grant, the executor must send the notices that Alberta law requires. Usually that means the beneficiaries in the will (or, with no will, everyone entitled to inherit); a surviving spouse or adult interdependent partner (common-law partner), about their rights; and other family members who could claim support from the estate. The Public Trustee is told when a child, someone who was a child at the death, or a missing person has an interest. An adult who has a trustee or an attorney is told through that person.

I prepare these notices as part of the application.

Every estate is different. The grant usually arrives about one month after the application is filed. After that, the administration can usually be wrapped up inside a year, though banks can be slow with their processes. Overall, it can take a year or so, depending on what assets the estate holds. A house to sell, a business or a family disagreement can add time.

The usual waits are the Court, the six months after the grant, and the tax clearance certificate.

There are two separate costs.

The Court’s filing fee depends on the net value of the estate in Alberta:

• $10,000 or less: $35
• over $10,000 to $25,000: $135
• over $25,000 to $125,000: $275
• over $125,000 to $250,000: $400
• over $250,000: $525

Legal fees: I apply for the grant of probate and give it to you for a flat fee, plus the Court filing fee and GST. That fee covers only the grant application. Other advice, drafting releases, transferring property and the rest of the estate work are not included in it. It also doesn’t include the Court filing fee, other out-of-pocket costs (disbursements) or GST.

Reasonable legal fees and Court costs are normally paid from the estate, not by the executor personally.

1. The executor finds the will and protects the home, accounts and belongings.
2. They work out what the estate owns and owes, and who the beneficiaries are.
3. If needed, they apply to the Court of King’s Bench for a grant of probate.
4. They pay the debts, file the final tax returns and get a tax clearance certificate.
5. They pay out the beneficiaries, usually after the beneficiaries approve the accounts and sign releases.

The executor’s guide covers each step in more detail.

The executor is the person named in a will to look after the estate. Alberta law calls them the personal representative. Any adult you trust can be your executor: a family member, a friend, or a professional. Someone who lives outside Alberta can act, but the Court may require a bond, which adds cost and time. If there is no will, the Court appoints an administrator to do the same job.

Alberta’s Estate Administration Act sets out the duties. In short, the executor:

• finds the will and protects what the person owned
• works out what the estate owns and owes
• gives notice to the beneficiaries and certain family members
• pays the debts and taxes
• keeps records and accounts to the beneficiaries
• pays out what’s left, as the will says

The Act expects the executor to act honestly and carefully, and to distribute the estate as soon as practicable.

Not right away. Certain family members who feel the estate doesn’t provide properly for them can apply to the Court for support, generally within six months after the grant.

That’s why Alberta law says the executor must not pay any part of the estate to beneficiaries until six months after the grant, unless all of those family members agree or the Court allows it. The Family Property Act has the same rule: for those six months the executor also needs the surviving spouse’s or partner’s consent, or a Court order. Debts and taxes come first too, and many executors wait for the Canada Revenue Agency’s clearance certificate before the final payout. An executor who pays out too early can be personally responsible.

Yes. Nobody has to act as executor. If you haven’t started dealing with the estate, you can usually renounce, which means signing a document that gives up the role, so the alternate executor in the will, or someone else, can apply. Once you’ve started acting, stepping aside is harder.

Send me an email before you do anything with the estate.

Then someone, usually a close family member, applies to the Court to be appointed administrator (a grant of Administration). The steps and costs are much the same as probate. If there is a will but no executor it names is able and willing to act, the grant is called Administration with will annexed.

Having a will with an alternate executor named avoids most of this.

Many executors find the Court forms, notices and deadlines hard to manage while they are grieving. A lawyer prepares the application, makes sure the right people get notice, and tells you what you can safely do and when.

It helps most when the estate includes a house, a business or property outside Alberta, or when the will is unclear.

Usually not all the way. Most will disputes settle before trial, through negotiation or mediation. Some claims have strict time limits in Alberta, for example a family member’s claim for support from the estate must generally be started within six months after the grant is issued. If you’re thinking about a challenge, get advice early.

Alberta’s Wills and Succession Act decides who inherits. (An adult interdependent partner is Alberta’s term for a common-law partner.)

• A spouse or adult interdependent partner, and no children, grandchildren or other descendants: the partner receives everything.
• A spouse or adult interdependent partner, and all the children are also that partner’s children: the partner receives everything.
• A spouse or partner, and some children from another relationship: the partner receives $150,000 or half the estate, whichever is more, and the children share the rest.
• No spouse or partner: the children share it (grandchildren take the share of a child who has died). If there are none, the parents; then brothers and sisters and their children; and so on.

A spouse who had lived separate and apart from the person for more than two years, or had a property agreement or Court order meant to finalize the break-up, is treated as if they had died first, so they don’t inherit.

Someone, usually a close family member, applies to the Court for a grant of Administration to be appointed administrator. The steps are much like probate.

The result often isn’t what the person would have wanted.

It can be. Alberta accepts two kinds of home-made will:

• a typed or printed will that you sign in front of two witnesses who are there at the same time, and who each sign it in front of you
• a will written entirely in your own handwriting and signed by you, which needs no witnesses

A gift to a witness, or to a witness’s spouse or partner, can fail unless the Court allows it. If a will doesn’t follow the formal rules, the Court can still accept it when there is clear and convincing evidence of what the person intended, but that takes a Court application.

A lawyer can help make sure the will meets Alberta’s rules and says what you mean.

Marriage: in Alberta, a marriage on or after February 1, 2012 doesn’t cancel a will. An older will stays in force and may leave out your new spouse, so review it.

Divorce, or a relationship ending: divorce, or the end of an adult interdependent relationship, generally cancels gifts in your will to the former partner and their appointment as executor, as if they had died before you. It doesn’t change the beneficiary named on an RRSP, TFSA, pension or life insurance policy. Change those yourself.

Estate planning means deciding ahead of time who gets what, who will be in charge, and who can make decisions for you if you become ill. For most people it is simply a will, an enduring power of attorney and a personal directive, plus checking the beneficiaries named on RRSPs, TFSAs and insurance.

You don’t need to be wealthy. A plan lets you choose your executor, a guardian for young children, and who inherits, instead of leaving it to the law. Canada has no estate or inheritance tax. But income tax is still due on the final return, for example on RRSPs, RRIFs and capital gains. Leaving them to a spouse or partner can delay that tax.

• By will: anything in the person’s own name goes to the beneficiaries the will names.
• By beneficiary designation: life insurance, RRSPs, RRIFs, TFSAs and pensions go straight to the person named on the plan.
• By joint ownership: property held as joint tenants passes to the surviving owner. But if a parent added an adult child as a joint owner, the law may treat it as part of the estate unless the parent’s intention is clear.
• By law: if there is no will, the Wills and Succession Act decides.

There are a few common reasons. The item may have passed outside the will, for example a life insurance policy or RRSP that names someone else, or a jointly owned account that went to the other owner. It may have been sold or given away before the person died. Or the estate may not have had enough left after paying debts and taxes.

An executor should be able to explain what happened. If they can’t, get advice.

It can, if each of you leaves everything to the other. A common disaster or survivorship clause says that if your spouse dies within a short time of you (often 30 days), your estate goes straight to your backup beneficiaries, such as your children. That avoids passing the same property through two estates. If it can’t be shown who died first, Alberta law treats each person as having died first. But if your spouse lives even a few days longer than you, your estate can still pass through theirs. A survivorship clause prevents that.

A will only works after you die. An enduring power of attorney lets someone you choose handle your money and property while you are alive, if you can no longer do it yourself. It isn’t required, but without one your family may have to apply to the Court before they can pay your bills or deal with your home.

No. A power of attorney ends when you die. From then on, your executor deals with your estate under your will.

A personal directive is Alberta’s name for what other places call a living will. In it you name someone (your agent) to make personal decisions for you, such as health care and where you live, if you can’t make them yourself. You can also write down your wishes for that person to follow.

It must be in writing, dated and signed in front of a witness, and the witness can’t be the agent, the agent’s spouse or partner, or your own spouse or partner.

Yes, if you want. They are separate jobs that happen at different times: your attorney acts for you while you are alive, and your executor takes over your estate after you die. Many people choose the same trusted person for both; others choose different people. It’s up to you.

Each province has its own rules. In Alberta, an enduring power of attorney must be in writing, dated and signed in front of a witness, and the witness can’t be the attorney, the attorney’s spouse or partner, or your own spouse or partner. It must say that it continues if you lose capacity, or that it only starts then.

If you have a power of attorney from another province, ask whether it will work here.

No. I do not take contested Court matters. My estate work covers uncontested probate, estate administration and wills. If your matter involves a dispute, I will need to decline so you can speak with a lawyer who handles that work.

Send a short message through the contact form about what you need. I’ll reply by email, at no charge, to let you know whether I can help. If you decide to go ahead, we keep in touch by email as the work needs, and you can drop documents off at the office at your convenience.

I apply for the grant of probate and give it to you for a flat fee, plus the Court filing fee and GST. That fee covers only the grant application. Other advice, drafting releases, transferring property and the rest of the estate work are not included in it. It also doesn’t include the Court filing fee, other out-of-pocket costs (disbursements) or GST.