For capable executors handling simple estates, probating a will without legal assistance is certainly possible and may save money.
However, in many cases, the probate process is not so straightforward as first appears and complications and delays can arise that may not go down well with beneficiaries or other interested parties.
It may also cost considerable amounts to rectify a situation or defend the estate or your own actions from a lawsuit.
Let’s take a look at what the probate process entails for a personal representative in Edmonton and the pros and cons of self-representation.
Grant of probate or administration
Generally, before the assets in the estate of a deceased person in Edmonton can be transferred to the rightful beneficiaries, a will must pass through the probate process. Without proof of probate, most financial institutions will not release funds or assets to the executor.
Probate is a court process whereby the will is validated and the personal representative named in the will obtains the legal authority to proceed with administering the estate.
Once the grant of probate has been signed by a Justice of the Surrogate Division of the Court of King’s Bench of Alberta, the deceased’s estate can be lawfully distributed.
If a person dies intestate (without a will), instead of probate, a potential executor must apply for a grant of administration from the court. This serves a similar purpose to a grant of probate and once granted, allows the estate to be legally distributed according to Alberta’s succession laws.
Pros and cons of probating a will without a lawyer
There are both positives and negatives to probating a will without a lawyer—and perceptions are often coloured by the experiences of others who have attempted it.
Not all of these perceptions are generally applicable, as you will see, and they often depend on whether you consider the short or longer-term view.
Probating a Will Without a Lawyer:
SAVING MONEY (IN THE SHORT TERM)
There is a perception of having greater control if you apply for probate as an executor without a lawyer. However, keep in mind that an executor instructs a lawyer to act on their behalf so even if you hire a lawyer, a high degree of control remains.
There is a common perception that probating a will might take longer through a lawyer because of pressure on the lawyer’s time.
Probating a Will Without a Lawyer:
SAVING MONEY (IN THE LONGER TERM)
Often, an executor saves money on legal fees during the initial probate application only to spend more later when the application gets rejected or needs to be fixed up by an experienced probate lawyer. It can end up costing more than the original money saved.
A probate lawyer can also provide valuable advice on distributing the estate so that you fulfill your legal obligations to the estate and avoid legal action against you or the estate—which can send costs spiraling.
The perception of having greater control without a probate lawyer is often a fallacy.
Even if you hire a probate lawyer, you maintain the decision-making responsibility at every step. Your lawyer will advise you on the probate application process and how to lawfully achieve what you need to when administering the estate with the least amount of “friction” possible.
Some executors find working with a probate lawyer more convenient—not less. Many underestimate just how much work goes into administering an estate.
Probate lawyers help with the required documentation, notifying interested parties, submitting the probate application to the court, filing documentation with the Land Titles Office, obtaining releases from estate beneficiaries, communicating with estate creditors, and more.
Contrary to perceptions, most people find that hiring a probate lawyer reduces—not increases—delays in the estate administration process.
Most probate lawyers do not get paid until the grant of probate is issued, which incentivizes a quick resolution. There is also less likelihood of a probate application being returned if it is completed by a qualified probate lawyer, leading to fewer avoidable delays.
Estate administration checklist to consider as the executor
The Estate Administration Act of Alberta identifies four key tasks of executors, which are further broken down to provide an overview (but not exhaustive list) of the responsibilities/duties of an executor.
Identifying the assets and liabilities of the estate:
- Reviewing the deceased person’s filed income tax returns to find income-generating assets and assets such as RRSPs
- Listing the contents of safety deposit boxes
- Notifying the provincial and federal governments of the death so benefits are stopped
- Notifying financial institutions of the death and requesting information about the assets
- Reviewing bonds, warrants, and share-conversion rights
- Reviewing an accounting from an attorney who has been appointed under an enduring power of attorney or trustee appointed under the Adult Guardianship and Trusteeship Act
Administering and managing the estate:
- Ensuring estate property is secure and insured
- Retaining a lawyer
- Advising beneficiaries of property that will pass outside the estate and joint tenancy survivors
Satisfying the debts and obligations of the estate:
- Advertising for claimants/creditors, if necessary
- Verifying whether claims are legitimate
- Paying debts and claims
- Finding out whether the financial institution will honour cheques not cleared by the deceased
- Reviewing documents such as mortgages and leases and arranging for payments
- Finding out if debts are life-insured
- Reviewing the deceased’s contingent liabilities and deciding what to do about them
- Notifying parties to which the deceased person gave guarantees of the death, in writing
- Determining the deceased person’s and the estate’s income tax or other tax liability
- Filing tax returns and paying tax owing
- Getting tax clearance certificates before distributing the estate
Distributing the estate and accounting for its administration:
- Distributing the assets of the estate
- Accounting for expenses incurred while administrating the estate
If you are the executor of a will in Edmonton and are considering whether to appoint an estate lawyer for assistance, speak to Vest Estate Lawyers during a one on one consultation before deciding on the next steps.
We currently have three offices across Alberta — Edmonton, Calgary, and Red Deer. However, we serve the entire province of Alberta. We also have the infrastructure to work with any of our clients virtually — even the furthest regions of Alberta.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take and what to expect moving forward.
Our offices are generally open 8:30 a.m.—4:30 p.m., Mon—Fri.
WILLS and ESTATES LAWYER
Colin is an estate lawyer practicing in the areas of Estate Litigation and Disputes. He emphasizes developing trusted relationships with his clients, ensuring they feel comfortable and at ease sharing the subtleties of their circumstances.