If you were named as the executor of a will some time ago, by the time arrives to take up the role you may have already considered whether or not to appoint a probate lawyer to help.
However, many people have not. Executors may only become aware of the intricacies of the role when it is time to take it on. So, one of the first decisions required is whether to use an estate lawyer to probate the will.
A Grant of Probate is a legal document validating the will and giving the go-ahead to the executor to begin administering the estate. In Alberta, the document is signed by a Justice of the Surrogate Division of the Court of King’s Bench and, typically, financial institutions will not release or transfer any assets until this can be produced.
It is important to begin the process of obtaining this as soon as possible after the death of a loved one so that there are no unnecessary delays or complaints from beneficiaries. There is no legal requirement in Alberta to appoint a lawyer to handle this process, but many executors find it easier to do so.
So, before you decide, let’s take a look at the pros and cons of hiring a lawyer to probate a will rather than managing it yourself.
When is probate required in Alberta?
Smaller estates where the testator has done proper planning can often avoid probate.
However, there is no straight answer.
Avoiding probate depends on the size of the estate, whether there is joint ownership of property, the number of creditors and beneficiaries, whether there is a threat to contest the will; and whether banks and financial institutions holding assets require probate in order to release the funds.
Do you have to probate a will in Alberta?
Probate is required when these factors exist:
- There is no surviving spouse as a joint tenant to receive title automatically upon the death of the deceased.
- The assets, especially real estate, are in the name of the deceased only.
- There are substantial funds in bank and brokerage accounts.
- The validity of the will is being questioned, or there is no will.
- The estate is the beneficiary of benefits from registered retirement plans.
Here is where experienced estate lawyers at Vest Estate can really help.
A frank discussion about whether any family members might contest the will is an essential first step in guiding the decision of whether probate is required.
If a will is going to be contested, then the probate process and resulting Grant of Probate protects you as the personal representative from having the Probate Court declare the will valid and that you can proceed as personal representative.
What are the pros of probate without a lawyer?
There are four main advantages to going it alone when probating a will:
1. YOU MAY SAVE MONEY
2. YOU MAY FEEL MORE IN CONTROL
3. IT MAY BE MORE CONVENIENT
Travelling to a lawyer’s office and having to attend to matters according to when the lawyer’s time is free may be inconvenient for some executors, who prefer to direct the process according to their own schedules.
4. IT MAY BE QUICKER
There is also a perception amongst some executors that lawyers take time to complete the paperwork because they are always busy. In these cases, the executors may choose to probate the will themselves to avoid perceived delays.
What are the cons of probate without a lawyer?
For each of the advantages of probating a will without a lawyer, there is a corresponding disadvantage – particularly if events follow a more unpredictable path…
1. YOU MAY SAVE MONEY
An executor who probates a will without a lawyer may save the initial legal fees only to find that they require legal assistance later because a mistake was made in the probate application or a challenge made to it.
Legal issues are extremely common when probating and administering estates in Alberta. It is generally best to ensure that you have addressed all the legal issues upfront with a competent and experienced probate or estate lawyer.
The legal advice of a professional who specializes in the field will also help with the estate distribution process after the Grant of Probate has been issued. This can help you prevent mistakes or omissions from being made, which can lead to expensive legal action.
2. YOU CAN RETAIN CONTROL OF THE PROCESS
When you hire a probate lawyer, you make the decisions and instruct the lawyer – not the other way around.
This ultimately means that you retain control of the estate administration process as the executor.
At the same time, you will likely benefit from both the legal advice provided and the practical assistance in completing the probate paperwork. Your lawyer can also advise you when dealing with Court Clerks, financial institutions and the Land Titles Office, as well as beneficiaries, family members or claimants against the estate.
3. IT IS GENERALLY MORE CONVENIENT
Probate applications are not easy to complete and the process involves considerable time and effort. Most executors find it more convenient to let a lawyer tackle these often-weighty documents and guide the estate administration process.
Your lawyer will provide you with a list of all the required documentation to complete the application and can also help serve notices on interested parties as required by local laws.
Once complete, your lawyer will file the application with the court, prepare documentation for the Land Titles Office if necessary and obtain releases from all beneficiaries of the estate to cover you legally when distributing the assets.
4. IT MAY TURN OUT TO BE QUICKER
Most estate lawyers have a major incentive to complete probate applications promptly – namely, they do not get paid until the Grant of Probate is issued because the funds may not be available until then.
So, fears about lawyers being too busy to complete the necessary paperwork are normally unfounded.
A lawyer may also save you time by ensuring the first application is complete and is not missing any important details or documents required by the probate court.
Some applications submitted to the court without the help of a lawyer require further information and may be returned multiple times, which creates unnecessary delays in the process.
Estate administration checklist
There are several major tasks for estate executors and these are laid out in some detail in the Estate Administration Act.
Following is a summary of these main tasks:
- Identify the assets and liabilities of the estate: review income tax returns to find income-generating assets and assets such as RRSPs, locate the contents of safety deposit boxes, etc.
- Notify the necessary organizations of the death: this includes the provincial and federal governments (so that benefits are stopped) as well as the financial institutions that hold the assets of the deceased.
- Administer and manage the estate: ensure that it is secure and insured and that beneficiaries are informed.
- Satisfy the debts and obligations of the estate: advertise for claimants, verify claims, and pay genuine debts and claims.
- Distribute the estate: ensure that assets are transferred to the correct beneficiaries, and prepare accounting for the expenses incurred during the administration of the estate.
As you can see, the work involved in probating a will and administering an estate is no small undertaking. That’s why most executors consider hiring a lawyer to help with the process.
If you are the executor of a will in Calgary and are considering whether to appoint an estate lawyer for assistance, speak to Vest Estate Lawyers 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 as well as what to expect moving forward.
Our offices are generally open 8:30 a.m.—4:30 p.m., Mon—Fri.
WILLS and ESTATES LAWYER
Allison provides a personalize experience in her Wills, Estates and Surrogate practice. She endeavors to get to know the clients to ensure the advice provided fits outside of the “one fits all” mold and fits individual family circumstances.