What is Probate?

Merriam-Webster defines probate as “the act or process of validating, through a competent judicial authority, a document presented for official acknowledgment and registration as the final will and testament of a deceased individual.”

But what does that mean in a practical sense?

As an executor, you may face challenges with accessing the deceased’s funds. Likely, their bank or another institution that the deceased’s funds cannot be released until you secure “Probate”. However, they typically don’t provide much further guidance apart from recommending you consult with a lawyer.

The following are key elements involved in the Alberta probate process:

1. The original signed will of the deceased is presented to the Surrogate section of the Court of King’s Bench of Alberta (the “Court”). Accompanying this submission is an application containing information about the deceased, the proposed executor(s), all beneficiaries named in the will, and any individuals with potential claims against the estate as well as a document substantiating the deceased’s death. This application includes an oath sworn by the applicant, affirming the accuracy of the provided details and of their comprehension of an executor’s duties and responsibilities.

2. The proposed executor affirms to the Court that all individuals who are required to be informed of the estate’s administration have been served the necessary documents.

3. A clerk of the Court examines the application and the will, then performs due diligence to verify the accuracy and completeness of the provided information. If any shortcomings are identified, the clerk returns the application and the Will to the applicant. They include requesting corrections be made before resubmission.

4. Once the Clerk is satisfied, the application is forwarded to a Justice of the Court. This Justice conducts additional scrutiny to validate the will, following which, if approved, they issue the ‘grant of probate.’ The grant identifies the executor(s) (referred to as the estate’s Personal Representative) and signifies to any third parties that they have been authorized by the Court to manage the assets of the deceased.

While this overview makes things look simple and straightforward, at Summit Legal Group we know that the process can be confusing… even overwhelming for the executor involved. Please reach out for a no obligation consultation to answer your questions and to provide you with some relief and guidance.

Craig Gorham
Certified Executor Advisor

AUTHOR

Craig Gorham is a Certified Executor Advisor at Summit Legal Group, guiding clients through the Estate Administration process with compassion, empathy and a wealth of specialized knowledge. You can reach Craig directly at 587-393-2069 or craig@summitlegalgroup.ca.

Choosing an Executor

One of the most important decisions you’ll make when you’re preparing your Estate Plan is selecting an executor. The executor of your will needs to be someone who is willing and able to carry out the many required tasks, which can take as long as two years to complete.

Your executor will be responsible for protecting and administering your estate, having your will probated and distributing assets to your beneficiaries. These are vital duties that require a significant amount of time and effort.

When deciding on an executor, you’ll want to choose someone who:

  • You can trust to manage your affairs the way you want. Avoid asking your adult children if you have any concerns about potential conflicts.

  • Has the time available to devote to executing the will. Click here to learn more about the duties of an executor.

  • Lives reasonably close to you, so they can easy to deal with your family and your assets. There are disadvantages, and potential costs to the estate, should you select an executor that lives outside of the province of Alberta.

  • Has some knowledge of tax, investments, and financial decision-making.

  • Is capable of getting things done, but is also willing to ask for help from others including professionals such as an estate lawyer or tax accountant.

  • Is willing to be your executor, and is likely to survive you.

CHOOSING AN EXECUTOR

If you have questions about choosing an executor, or about any other estate planning related matter, contact the offices of Summit Legal Group for a consultation.

Some additional options when choosing an executor:

1. Consider naming an estates professional as your executor.

Many people choose to appoint family members or close friends as their executor. However, if you have a complex estate or are concerned about potential family conflicts, consider appointing an estates professional, like a lawyer or a trust company, as an executor.

2. Choose more than one executor

For example, you could name joint executors such as a family member and friend or a family member or friend and a lawyer or trust company as co-executors.

3. Name a back-up

Include an alternate executor in case your first choice is unwilling or unable to manage your estate.

Your named executor may choose to hire a lawyer or estate professional to help them take care of handling the day-to-day administration of your estate. Their fee would be paid by the estate.

Ensure your executor has or knows where to find, the most recent copy of your will and other pertinent estate information.