Estate & Probate Lawyer Services

Answers To Frequently Asked Questions

Explore the FAQs below. Cant's find the answer you need? We're a phone call or submission away.
  • How can I avoid doubling my probate costs?

    Do you want to leave your entire estate to your spouse or common-law partner? In such cases, it’s smart to insert a common disaster clause in your will. Without it, here’s what could happen: If you or your spouse died, your assets would go through probate twice. Once for your will and once for your spouse’s will.

    To avoid that, wills with a common disaster clause usually specify that if you and your spouse die within a short time of each other (such as within 30 days), your estate would instead go to contingent beneficiaries – like your children – rather than to your spouse.

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  • What could happen if your executor doesn’t go through probate?

    Without probate, your executor can hit a wall.

    Imagine if your executor contacts your bank, mutual fund company, or pension plan provider, or the land title office with a non-probated will in hand. Your executor then asks them to hand over your money or register a transfer of property title.

    Those institutions will want proof that:

    you’ve died,the will is valid and is the final version,your executor is the person named in your will, andthey won’t be sued if anyone contests the will.

    Consider this: Why would a bank risk a lawsuit for handing out your money to the wrong person? They’re not likely to take a risk by assuming your non-probated will is valid. Instead, the bank may refuse to release your money until it gets the legal protection. And, they can only get this legal protection from approval of your will by the provincial probate court. That’s the big upside to probate.

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  • Why does an executor have to apply for probate?

    Each province has its own rules. But generally speaking, your executor must apply to your province’s probate court for approval of your will if you:

    died in debthad bank accounts, registered investments  or life insurance policies without a named beneficiary and if the financial institution is not prepared to pay out the funds without probate; orif you owned real property that isn’t being directly passed to your spouse or common-law partner through joint ownership.

    (*Please note: If the estate is essentially bankrupt, then the executor usually doesn’t apply for probate. Why? Because there’s no money to cover the cost.)

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  • Who does what in the process of probate?

    Let’s assume we’re talking about your own will.

    You don’t have to do anything, because probate is a process that affects your will after your death.Your executor. Remember, this is the person responsible for carrying out the terms of your will, making sure your debts are paid, etc. After your death, your executor must secure the assets of your estate. They’ll then determine whether your estate needs to go through probate. Even if it’s not a legal requirement, your executor may apply for probate to ensure that they can rely on your will as being the final version of your written instructions.

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  • What if you don’t have a will or your executor can’t do the job?

    Then the courts have to appoint an administrator – and the costs will be similar to probate.

    But it really helps if you have a will.

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  • What’s an executor?

    An executor is someone who can carry out the terms of your will and look after your assets after your death. If you’re writing a will, you’ll have to name an executor. It could be a family member, a lawyer or someone you trust. If you die without a will, the court may appoint an administrator for your estate.

    Please note that “assets” refer to anything you own that has financial value. This could be a home, a car, a savings account or an investment. These assets are what make up your estate.

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  • How long does estate administration take?

    Obtaining a grant of probate usually takes 3-4 months from when the application is received to to being approved by the Probate Registry. Once approved, administering the estate can take anywhere from six months to two years. Delays usually come from court processing and obtaining tax clearance certificates. 

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  • What happens to someone who dies without a will?

    The deceased individual's estate is divided pursuant to the Wills, Estate and Succession Act (WESA). The spouse gets the family home and a certain amount of the deceased's estate (depending on whether the deceased had children). Someone, usually a family member, will have to apply to court for letters of administration to administer the estate.

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  • Will I have to go to court to contest a will?

    Most cases settle out-of-court settlements prior to trial, either through negotiation, mediation, or arbitration.

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  • Will I have to pay legal fees if I am the executor?

    An executor's legal fees can be paid out of the estate's assets, and not by the executor personally. 

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  • Hiring estate planning professionals is expensive. Can I prepare my own will and figure out a plan all by myself?

    Yes, but this is not recommended. Many states allow residents to prepare their own wills, and some retail stores or websites offer will kits and software. However, a self-prepared will, without the assistance of estate planning professionals, can be easily attacked by discontented beneficiaries after your death, can leave loopholes for unintended beneficiaries, and in many situations, be considered invalid right from the start.

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  • What is estate planning? I am not wealthy, why do I need to have an estate plan?

    Estate planning is the process of anticipating and arranging for the management and disposal of your estate during your life, as well as at and after death, while minimizing gift, estate, generation skipping, and income tax. A will is part of the estate plan. Depending on the complexity of the situation, an estate planner might use other tools such as trusts, pass-through entities and/or life insurance to accomplish your estate planning goals.

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  • I was listed in the will as a beneficiary of certain assets. Why didn’t I inherit the assets?

    Estate properties can be passed by will, beneficiary designation, operation of law and state law. Under most circumstances, passing of property by beneficiary designation and operation of law is not influenced by the will. For example, life insurance proceeds pass outside the will to the named beneficiary, be it mentioned in the will or not, as do the death benefit proceeds from a retirement plan.

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  • How is my property transferred at death?

    Property is transferred at death in several ways:

    . Valid will – A legal document created to express how a person desires his or her property to be distributed at death. It also names one or more persons to manage the estate through its final distribution. 

    . Beneficiary designations – Examples include life insurance policies, death benefits of a retirement plan, prenuptial agreements, postnuptial agreements, etc. 

    . Operation of law – A legal term indicating that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, jointly owned property with right of survivorship. 

    . State law – This will typically come into play if no will is presented for probate for a deceased.

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  • What is subject to Probate?

    Most assets including property, vehicles, stocks, bonds, bank accounts, share ownership. Exceptions include certain assets to a named beneficiary such as RRSPs, RRIFs, TFSAs and insurance. Also excluded are assets given or created during the decedent’s life, such as gifts, and assets in “Inter Vivos Trusts”

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  • What does the Estate process entail?

    An executor, established in the decedent’s will, determines the value of the estate, the names of beneficiaries, and assesses what is due to each beneficiary. Once submitted and approved by the Probate Court, the assets are distributed to beneficiaries.

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  • How long does the Estate process take?

    From three months to 18 months or more, depending on estate complexity

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  • What is Probate?

    A judicial process to transfer a decedent’s estate to its beneficiaries, validate the will, and empower the executor to administer the estate.

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  • What if you die without a Will (Intestate)?

    I have had to deal with too many Canadians and their regret that a relative or friend did not have a valid will when they died. Example. I know of a woman who lived to 100, receiving congratulatory letters from the Prime Minister and the Queen. Her will had been revised in accordance with her wishes. However, she was hospitalized in an emergency and never got to sign that revised will. Following her death, with no signature, the courts decided on a previous will, splitting the estate in ways contrary to her wishes.

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  • Do I really need a Lawyer to prepare my Will?

    Of course not. You may be able to take the time to put together a legally binding document that will stand up in court But there are many ways to make a mistake and I assure you our clients do not want their intentions thwarted following their death. From past experience I can tell you that without a valid will, this can get very complicated and nasty to resolve. Let’s face it, when we die, we don’t want our assets going to relatives we didn’t care about, causes we didn’t like, or government coffers. Much will depend on the intestate laws of where you live, and whoever is appointed to handle your estate.

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  • Do I need a Power of Attorney as well as a Will?

    Since we are all going to die, we need a Will.  However, a PoA is not required. Having said that, putting a PoA in place is an extraordinarily smart action on your part. If you were to lose capacity without one, you could expose your family to potential feuds. Consider your PoA as insurance against that.

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  • Does a Power of Attorney survive my death?

    No. The moment you die, your PoA is cancelled and your Will comes into effect.

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  • What is a Personal Directive (Living Will)?

    A Personal Directive is the legal term used in Alberta, somewhat equivalent to the term “Living Will” used elsewhere. It’s a decision by you to give authority to another person to act on your behalf if you are unable to do so yourself. For example, if you are ill and clearly in no position to make decisions. Your lawyer will help you draw up a suitable Personal Directive to reflect your wishes.

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  • Can the person I appoint to be my PoA representative be in conflict with the Executor of my Will?

    There is no relationship between your PoA appointment and your Will. Your named “Executor” in your Will administers your “estate” (financial assets) after you die. If you wish, your Executor and your PoA representative can be the same person. It’s up to you.

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  • Are there Provincial differences in Power of Attorney requirements?

    Yes. Provinces each have their own interpretation of PoA. Check what those conditions are for the Province where you live.

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  • Why hire a qualified lawyer?

    When the estate is complex, when you want legalities handled quickly and competently, no lawsuits, no family fights, no Probate Court rejection, beneficiaries paid, and most of all, peace of mind.

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  • Can I schedule a consultation?

    If you’ve made it this far, the best thing to do is schedule a consultation with me. Bring whoever you need to attend.

    During the consultation we can discuss any additional questions you have without a commitment to work with me. I want you to feel comfortable with me before you decide.

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