A Grant of Probate may be necessary before any assets of the deceased can be passed to beneficiaries. If there is no will, the situation is more complex and one of the family members will need to apply to the court to administer the estate. The application in this situation is one for a Grant of Administration.
At a time of grieving, navigating these legal hurdles can be a challenging process for family members.
The easiest way to arrange the necessary legalities for administering an estate is generally with the assistance of a probate lawyer.
At Vogel LLP, our probate lawyers can help ensure that the estate is handled according to the stated wishes of the deceased, in the least time possible, and with protection from personal liability.
Who needs a probate lawyer in Calgary?
If you have been named as a personal representative and need to carry out the instructions in a deceased’s will, a probate lawyer or estate lawyer can help you fulfill your duties.
Probate lawyers help you settle the estate. This includes, but is not limited to, the important tasks of:
- identifying and distributing the deceased’s assets;
- paying any debts, taxes and obligations that are due;
- dealing with any claims against the deceased or the estate;
- distributing the estate to the beneficiaries named in the will, or in accordance with the intestate succession provisions if there is no will.
Most of the property left behind by a person is considered part of their estate, and governed by their will. Property that is not considered part of a deceased’s persons estate includes real estate that is owned in joint tenancy with others, and TFSA’s with a successor annuitant, RRSP’s/RRIF’s with a designated beneficiary, and life insurance policies with a designated beneficiary.
The probate lawyer will help ensure that you carry out the process of administering the estate correctly, and that all the legalities are looked after according to the estate laws in Alberta.
What is the standard estate administration/probate process?
It can take a long time to finalize an estate even with the assistance of a probate lawyer. Just how long will depend on the complexities of the estate and if there are any legal challenges to decisions made.
Following are the basic steps that a personal representative will need to go through in Alberta:
- Gathering all the necessary documentation relating to the will, land titles, bank account details, and other key financial information.
- Applying for probate and waiting approval from the Alberta court (which can take anywhere from 8-16 weeks, depending on how busy the court is).
- Providing further information if required by the court, and resubmit the application if necessary.
- Dealing with the deceased’s and the estate’s tax returns, and obtaining a clearance certificate from Canada Revenue Agency before releasing any assets.
- Dealing with any claims against the estate.
- Paying the legitimate creditors of the estate.
- Preparing the accounts of the estate, and keeping records of all transactions that occur in the estate after the deceased has passed away.
- Distributing the estate to the legitimate beneficiaries of the estate.
Without taking all of the proper legal steps, a personal representative may face personal liability. It is therefore easy to see why many people choose to hire a lawyer to assist with this often lengthy and complex process.
Is a grant of probate always necessary in Alberta?
In some circumstances, the personal representative named in a will can distribute an estate without probating the will.
If assets such as bank accounts, vehicles, and real estate are held jointly with someone else, such as a spouse, probate may not be required.
However, in most cases, you will need the authorization to act from the court via a Grant of Probate.
It is important to find this out as soon as possible. Under Alberta law, personal representatives must deal with the will and distribute the estate as soon as possible. Otherwise, beneficiaries may grow impatient and appeal to the courts.
In the following cases, a Grant of Probate from the courts is always necessary:
- the deceased owned real estate in his or her own name;
- the deceased’s estate is complex, of great value and includes many assets;
- financial institutions, such as banks or investment firms, require it to release assets of the deceased (this is determined at the discretion of the banks or investment firms);
- disputes arise among beneficiaries over the distribution of the deceased’s assets and/or the validity of the will.
Which assets are subject to probate in Alberta?
The following assets are usually subject to probate in Alberta:
- bank accounts with balances over a certain amount (this is determined at the discretion of each individual bank);
- investment accounts with balances over a certain amount (this is determined at the discretion of each individual investment firm);
- life insurance policies with no named beneficiary;
- real estate that is held in the deceased’s sole name, or in the deceased’s name as a tenant-in-common.
It is to be noted that any financial institution, whether it is a bank or an investment firm, holding an asset is entitled to request a Grant of Probate before paying out the funds. Policies vary from one institution to the next.
How long does probate take?
Dealing with an estate that is subject to probate can take over a year. However, this varies greatly depending on the complexity of the estate, the value and type of assets, whether there are any claims or challenges by beneficiaries or other family members, and the dedication of the personal representative to getting matters resolved.
Complex estates can see the administration process take over a year even with the assistance of a probate lawyer.
A probate lawyer will often be able to help you speed up the process by advising you on time-saving strategies; however, it is best to proceed according to the letter of the law to avoid personal liability.
Need help probating a will in Calgary?
If you have been named as a personal representative, the experienced probate lawyers at Vogel LLP in Calgary can help with the administration process.
Please contact us to schedule a consultation, and we will be happy to answer your questions and advise you on the next steps during that consultation.