15 Oct Grant of Probate in Alberta
“Probate” typically refers to an Estate Administration procedure in its broadest sense. The distribution of the decedent’s estate is done through the estate administration process. One of the first tasks in estate administration is to ask the court for a probate, unless the estate is extremely straightforward, or one is not necessary.
The Judge of the Surrogate Division of the Alberta Court of Queen’s Bench confirms the Will and certifies the power of the Personal Representative in a court document known as the Grant of Probate. The legal document used when someone passes away without leaving a will is referred to as “Letters of Administration.” However, obtaining Letters of Administration frequently requires a similar set of steps and duties.
Stages of Probate in Alberta
In order to obtain the Probate or Letters of Administration, if you are a Personal Representative, also known as an Executor, you can anticipate taking the following customary actions. The estimated time frames for how long probate takes in Alberta only apply in amicable conditions and are not guaranteed. The ETA will also differ based on how much time and focus you are willing to put into the project, as well as whether you have the necessary skills and support from professionals.
Step 1: Finding the will.
A person may be appointed as the personal representative of the deceased after death. If the deceased did not designate a personal representative in their will, the statute grants the right to do so.
Step 2: Choosing the stage for a personal representative.
If you discovered the Will, you must validate its authenticity and ascertain who the decedent intended to choose as the estate’s executor. You must decide who has priority to become the Personal Representative under the law if the Will cannot be found.
To avoid ambiguity or delays, you might want to get help from an Alberta Probate Lawyer. An hour or so will often be needed for a Wills & Estates Lawyer to analyse your initial information and talk with you about your case. To help you, OLEX Legal provides first consultations that are free of charge.
Step 3: Information collection
You must gather the data for the Probate application in the event that you are qualified to serve as the decedent’s estate’s Personal Representative. A list of additional assets and liabilities, a list of other assets, a death certificate, bank and investment statements, life insurance policies, land titles, automobile registration documents, and family information may also be included in the paperwork.
Once you have all the necessary paperwork, you must give it to your attorney. To make sure we have everything we need to move forward with the Probate application, OLEX Legal reviews and discusses the documents with clients at no additional cost.
Step 4: Probate Application.
Once you have all the necessary data, you should complete the court application forms. After collecting all necessary information from the client, OLEX Legal’s probate attorneys are committed to drafting the application for probate or letters of administration within two weeks. We will go over the ETA in advance if your circumstance is unusual and calls for more time. We will discuss your Probate application with you when it is prepared and then invite you to sign.
Step 5: Probate Application Completion
The Surrogate Division of the Court of Queen’s Bench of Alberta, in the judicial district where the deceased resided at the time of death, must receive the court application after you sign it.
Step 6: Application Processing
The Court will require time to process the Probate application after receiving it. In Calgary, for instance, the Court’s assessment of the application and issuance of the Grant of Probate or Letters of Administration may take up to 6 months. Probate in Alberta, however, normally takes 6 to 12 weeks, depending on how busy the Court is and whether the paperwork needs to be corrected or updated. Unfortunately, there is currently no way to speed up the procedure.
You will receive certified copies of the Judge’s grant whenever the Probate or Letters of Administration are granted. The estate distribution should not be done at this time.
Step 7: Executor’s stage – distribution, releases and executors’ compensation.
The Personal Representative can conclude the estate’s administration once they have obtained the Grant of Probate or Letters of Administration. Account statements for all assets in the estate from the date of the decedent’s death to the first release date must first be prepared by the Personal Representative. In light of this, the Personal Representative will decide how to divide the estate and develop a distribution table. The Personal Representative must also create a compensation schedule if they want to be paid.
Once all pertinent financial data has been collected, it is essential to design releases that the recipients can sign. If necessary, OLEX Legal Probate Lawyers help clients prepare the releases and evaluate the financial records.
Step 8: Collection of Assets, debt, settlement and distribution
The Personal Representative must transfer assets from the deceased to the estate in order to consolidate the estate’s assets. The Personal Representative may be required to provide the required documentation to banks, insurance providers, registries, and the Land Title Office in order to accomplish this.
The Personal Representative is responsible for paying the decedent’s debts and taxes before distributing the estate. The Personal Representative may occasionally need to request a Clearance Certificate from the Canada Revenue Agency. Consider speaking with a tax accountant about complicated tax filings and the Clearance Certificate because the Executor is personally liable for the tax payments.
Once the Personal Representative has gathered the assets and secured the beneficiaries’ releases, they can: distribute the deceased’s estate in accordance with the suggested distribution table after receiving releases from all estate beneficiaries.
Estates in the Event of Intestacy
In Alberta, if a person passes away without leaving a will and leaves behind a spouse or Adult Interdependent Partner (commonly known as an AIP) and all of the dead person’s children were born into that relationship, the entire estate goes to that spouse or AIP rather than being split between the spouse (or AIP) and the children. According to the Wills and Succession Act, the decedent intended for the husband (or AIP) to receive everything and to care for the children. Let’s say someone passed away intestate, leaving a common-law spouse and a shared adult child who is an independent earner. According to the Alberta Wills and Succession Act, the common-law partner will be given the entire decedent’s fortune.
In a scenario in which the decedent passed away without a will but left behind a spouse, an AIP, and children from a previous union. The husband or AIP would then be eligible to receive a preferential part of the estate. The remainder of the estate is given to the kids. The preference share is equal to the greater of $150,000 or half of the dead person’s net estate. If the decedent had both a husband and an AIP, they would divide the estate equally if there were no children, and the remaining portion would go to the children.
Imagine that a person who had a spouse and a child from a prior relationship was left behind after passing away without a will. If his estate has a net worth of $200,000, for example. The spouse will be awarded $150,000 and the child will be given $50,000, according per the Alberta Wills and Succession Act.
It should be noted that if a couple has been divorced or separated for two years or more, or if a court has declared the couple to be irreconcilable or issued a court order or separation agreement, the spouse loses their rights to the deceased person’s inheritance.
Survivorship
The new presumption is that each of the deceased has predeceased the other if two people pass away almost at the same time and it is unclear who passed away first. As a result, neither person’s estate will pass to the other’s estate; rather, it will go to each person’s heirs. Additionally, any property they jointly owned will change to a tenancy in common so that one-half of it will pass to each of their respective estates rather than the other’s. If the Will demonstrates a contrary intention, this rule is applicable. Let’s say a married couple without children perished in a common accident.
Let’s say a married couple without children perished in a common accident. Consider that both of their Wills list the other as the first-choice beneficiary of all of their bank accounts, with the husband designating his mother as the second-choice beneficiary and the wife designating a charitable organisation as the second choice beneficiary. Imagine that they were joint tenants in a home. If the woman passed away first, the husband would receive her bank account and her portion of the house before his mother. If we are unable to determine who passed away first, the wife’s bank accounts and half of the house will be donated to the charity of her choosing.
Temporary Ownership of Marital Residence
With a court order, a surviving spouse or Adult Interdependent Partner (also known as AIP) may now remain in the family residence for up to 90 days after the date of death. The law holds true whether the house is rented, held by someone else, or owned by the deceased and another person as joint tenants. During this 90-day stay, the expenses must be covered by the estate. Let’s say a husband went away, and the couple had been joint tenants in a condo that belonged to the husband and his mother. The wife has the right to occupy the condo at the estate’s expense for a period of 90 days.
Claims for Family Maintenance and Support and Dependents’ Relief
Dependents could ask for a larger portion of the decedent’s estate if the decedents will did not adequately provide for them. If the motion is granted, the court can alter how the deceased person’s estate is divided to make sure the dependent person gets enough assistance. Spouse, Adult Interdependent Partner, minor child, adult child under the age of 22 who is enrolled full-time in school, adult child with a physical or mental disability, and adult child under the age of 22 are the family members who are eligible to apply for the dependant’s relief.
Payments to Beneficiaries
One can claim that a deceased person who gave money or property to a beneficiary during their lifetime did not regard those transfers to be gifts but rather an advance on the beneficiary’s portion of the estate. If the claim is upheld, the beneficiary may have to pay back the transfers or have their part of the estate reduced proportionately. Let’s say a father passed away and divided all of his possessions evenly between his wife and kid. Consider as well that the father gifted the son $100,000 before his passing. Consider a scenario in which the wife may show that the money was intended to be a loan and there is no proof of repayment. In that instance, the son’s inheritance part from the father will be reduced.
