Executors Probating Wills Without a Lawyer
If you are making or administering a will in Alberta, you will likely need to address the topic of probate at some point.
Probate is the process of legally validating a will and an executor’s authority to distribute the assets of the deceased.
In the majority of cases, the Alberta courts must issue a grant of probate before the personal representative responsible for administering the will can perform transfers of property to beneficiaries.
Because of the requirements of probate, loved ones may have to wait for their inheritance because the process can slow down the transfer of property after death. Some people take steps to avoid this when estate planning and we will consider the five main ways to achieve this…
Why try to avoid probate in Alberta?
Probate is usually requested by banks, land offices and other financial institutions before they will release assets to a personal representative of the deceased.
This means that the process of transferring property and other assets to beneficiaries is delayed until the grant of probate is issued by the Alberta courts.
How long this delay lasts depends on how busy the courts are at the time of the probate application. It can take up to six months to review your case and issue a grant of probate—longer if there are any issues with the application. However, more typically, it takes six to eight weeks if all the paperwork is in order.
On the face of it, there is little financial incentive to avoid probate. The fees for probate in Alberta are currently as follows:
|Estate value $10,000 or less
|Over $10,000 up to $25,000
|Over $25,000 up to $125,000
|Over $125,000 up to $250,000
However, if you hire a probate lawyer, as is common for many personal representatives, there are legal fees to meet on top of this.
A probate application requires a personal representative to gather considerable documentation, including the original will and proof of assets. This step alone can take a few weeks at a time when family members are also organizing the funeral and going through the grieving process.
For that reason, many testators (people who create wills) take steps to avoid probate for certain assets. By avoiding probate, these assets can pass to beneficiaries without delay after the death of the testator.
Is avoiding probate necessary?
You will need to weigh up several factors when planning your estate before deciding whether avoiding probate is the right option for you.
As well as the cost and time considerations involved with probate, you should consider some benefits of the process.
For instance, a grant of probate protects the executor of the will from legal action as it is a court order confirming the legal authority to act on behalf of the estate.
Going through probate also saves significant time, effort and costs associated with creating trusts that are designed for passing on assets without probate.
Furthermore, not everyone who makes a will can call upon reliable people to administer their estate. If no executor is named, the Alberta courts must appoint a competent person to administer the estate after the probate process.
5 ways to avoid probate in Alberta
Let’s assume that you have considered the pros and cons and decide that it is a good idea to take steps to go ahead with avoiding probate when estate planning.
There are five main ways to accomplish that legally in Alberta.
1. MAKE BENEFICIARY DESIGNATIONS FOR ASSETS
Some assets like a life insurance policy, tax-free savings account (TFSA), registered retirement savings plan (RRSP), and registered retirement income fund (RRIF) allow you to designate beneficiaries.
In doing so, the asset is moved out of your estate after you die, meaning that probate is not required. If there is a conflict between the designated beneficiary and the term specified in a will, the designated beneficiary status generally holds sway.
2. SET UP PROPERTY WITH JOINT TENANCY
Under the “right of survivorship”, property with joint tenancy automatically transfers to the surviving joint “tenant” upon a tenant’s death. It does not pass into the deceased’s estate and, therefore, is not subject to probate.
This strategy does not come without associated risks and the default rule of survivorship may not apply in your case. It is important to discuss this with an estate planning lawyer before committing to it so that you are aware of all the risks.
3. ESTABLISH A LIVING TRUST
Living trusts are different from testamentary trusts in that they are set up during your lifetime and you can act as the trustee, holding assets for the benefit of a named third party.
Bear in mind that by transferring assets to a living trust, you give up ownership of the assets. Thus, they do not form part of your estate after you die and are not subject to probate.
However, trusts are not a simple matter and there are associated costs, so be sure to discuss with your estate planning lawyer before committing.
4. GIFTING WHILE YOU’RE ALIVE
Many people “gift” assets to loved ones to avoid probate. These gifts are the legal property of the person who receives them so they do not form part of the deceased’s estate.
This move is quite “final” and you lose control of the asset as soon as it is gifted. There may also be tax consequences, so you should talk it over with an estate planning lawyer and do your calculations before deciding to go ahead.
5. WRITE MORE THAN ONE WILL
Finally, by creating a separate will for each jurisdiction where you have assets and another will for assets that do not require probate, you can allow some assets to pass quicker to beneficiaries by avoiding the probate process.
Local probate costs vary and so you may also save on probate costs by doing it this way though it would cost more to produce the wills in the first place.
Keep in mind that each will needs to be professionally drafted by a lawyer and may require frequent amendments to avoid conflicts and unintended consequences.
If you are planning to write a will, establish a living trust or “gift” assets, it can become complex.
Get legal assistance with your estate plan, starting with a one-on-one initial consultation with one of our experienced estate planning lawyers.
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.
PARALEGAL, LEGAL ASSISTANT
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