Grant of Probate VS Grant of Administration
A grant of probate and a grant of administration serve similar purposes but in different circumstances.
When someone dies after having written a will in Alberta, this will must usually go through a probate process in the Alberta courts before the estate of the deceased can be distributed.
If someone dies without a will in Alberta, the estate cannot be distributed until a grant of administration is issued by the courts. This is an order granting the power to manage the deceased’s estate according to the intestacy laws in the province.
Both processes provide the authority to begin distributing a deceased’s estate but whether the person died with a will or intestate affects the legal processes required by the survivors.
Read More → Can the executor probate a will without a lawyer in Alberta
What is a grant of Probate?
A grant of probate is a court order issued by the Surrogate Court in Alberta, proving the validity and authenticity of a will according to the Wills and Succession Act.
The will is submitted as part of the probate application and the process involves confirming that the will is the final one made and determining the legitimacy of the claim by the executor to administer the will.
The grant of probate effectively provides authority to the executor to distribute the estate according to the wishes stated by the deceased in the will.
Who is responsible for probating a will?
The person responsible for probating a will is known as the personal representative of the deceased.
This individual is also responsible for locating and distributing the deceased individual’s assets, paying any taxes or debts of the estate, and carrying out any other final wishes stated in the will and according to Alberta law.
After the death, the will must be filed with the Alberta court along with the necessary application for a grant of probate.
If no executor is named in a will or the named executor is unwilling or unable to accept the role, the probate court will appoint someone else to serve as the executor, often a close family member of the deceased.
Is a grant of probate always necessary in Alberta?
Probate is usually required in Alberta when financial assets are held solely in the deceased’s name or if real estate is involved.
If a personal representative attempts to transfer funds or property title of a deceased person, the financial institution responsible will usually request a grant of probate to prove that the individual has the legal authority to deal with the property.
Otherwise, the institution may be held liable if assets are transferred erroneously due to fraudulent or defective claims (for instance if a later will is located).
Banks in Alberta have the discretion to require a grant of probate if the deceased has over $25,000 in an account. The Land Titles Office in Alberta will not transfer land or discharge any mortgages, caveats, liens, etc., registered against the title to the deceased’s property unless presented with a certified copy of the grant of probate.
If a married couple or adult independent partners have made estate plans in which all assets are held in joint names and real property is held in joint tenancy, a grant of probate may not be necessary if one of the partners passes away.
Joint ownership carries a “right of survivorship”. This means that the surviving account holder or land owner automatically acquires full ownership of the jointly held assets.
The surviving partner will usually need to file a copy of the death certificate issued by Alberta Vital Statistics or a Funeral Director’s Statement of Death to have the name of the deceased removed.
The Land Titles Office in Alberta requires an Affidavit of Surviving Joint Tenant and a death certificate of Funeral Director’s Statement of Death to remove the name of the deceased from the title.
What is a grant of administration?
A grant of administration (sometimes called a “letter of administration”) is a court order usually issued when no will can be located and the affairs of a deceased person need to be managed.
Until a grant of administration is awarded in such circumstances, nobody has the legal authority to distribute the assets of the deceased — not even the next of kin.
When do you apply for a grant of administration?
If a person dies intestate with no evidence of a will, a person or persons may wish to take on the responsibilities of administering the estate. This is usually a close family member, who must first conduct a thorough search to ensure there is no will and then apply for a grant of administration without will annexed.
There are other situations too where a grant of administration may be issued in Alberta: for instance, if there is a will but the appointed personal representative has died or is otherwise unwilling or unable to take on the responsibilities.
If this is the case, the application to the court is for a grant of administration with will annexed and the court will appoint a personal representative to administer the estate.
In the case of a bankrupt estate, the court may appoint a creditor of the estate to administer it.
If a will is declared invalid or does not deal with all of the deceased’s property, the court may intervene and issue alternative administration orders, such as an administration of unadministered property or administration when the validity of a will is in question, etc.
Who can apply for a grant of administration without will annexed?
Only certain people can apply to the Alberta courts for a grant of administration without will annexed order. Preference is given according to a strict order of priorities set out in the Surrogate Rules of Alberta:
- The spouse of the deceased (or someone nominated by them).
- An adult child of the deceased (with the consent of the majority of the deceased’s children).
- A person nominated by a child of the deceased (with the consent of the majority of the deceased’s children).
- An adult child of the deceased without the consent of the majority of the deceased’s children.
- If there are no adult children, any other heir. Priority goes to an heir who is the consensus pick of the heirs with the majority interest in the estate and next to someone nominated by those heirs. Otherwise, any heir can apply.
- A friend of the deceased, a professional such as a lawyer/accountant or the Public Guardian and Trustee.
If there is more than one family member eligible to apply for a grant of administration, the family should reach a mutually acceptable decision about who should apply. Those eligible to apply may nominate another person to be the administrator.
This situation changes if there is a valid will but the personal representative will not or cannot act. In order of priority, the following individuals may apply:
- A beneficiary under the will who’s the consensus pick of the other beneficiaries with a majority interest in the estate.
- Someone nominated by a beneficiary (with the consent of the beneficiaries who have a majority interest in the estate).
- A beneficiary who doesn’t have the consent of the beneficiaries with a majority interest in the estate.
- Any other person, including the Public Guardian and Trustee, with consent.
If you need help with any estate administration matter, the experienced lawyers at Vest Estate Lawyers in Edmonton can discuss your options during an initial consultation.