Most wills in Alberta must pass through a process known as “probate”. This is where the Alberta courts verify the validity of a will and confirm the identity of the personal representative, who will administer the estate.
A grant of probate issued by the Court of Queen’s Bench in Alberta proves that the will is valid and that the personal representative is entitled to act on behalf of the deceased.
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When is probate required in Alberta?
Some assets from the estate do not require probate but if a financial institution or the Land Title Office are involved, probate is usually required before any transfers can be made to beneficiaries.
These institutions protect themselves before releasing any funds or title by requesting a grant of probate that formally recognizes the will as the last will and the personal representative as legally entitled to act on behalf of the deceased.
You can expect to have to probate a will in Alberta if any of the following apply:
- There is no surviving spouse
- The assets (especially real estate) are in the name of the deceased only
- Substantial amounts of money are in bank accounts/investments
- Questions have been raised about the validity of the will
- The estate is the beneficiary of benefits from registered retirement plans
A general rule of thumb is: the larger the estate, the more likely probate will be needed.
Some small estates, which are very simple to execute, can be distributed without a grant of probate being issued. In some cases, a surviving spouse becomes the sole owner of assets in the estate, since the assets are already in both names.
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Does real property require probate in Alberta?
To transfer real property to beneficiaries in Alberta generally involves approval from the Land Title Office.
This applies to any property that the deceased owned as a sole owner or as a tenant in common.
The exception is when a deceased person was a property owner as a joint tenant. In effect, the property forms no part of the deceased’s estate in such cases. The joint tenant has a right of survivorship, meaning that the property can pass directly to the other tenant simply upon completion of the necessary forms.
Complexities may arise if the deceased person owns property in provinces other than Alberta (or overseas) as local estate laws will apply to the transfer of this property.
Do financial assets usually require probate in Alberta?
If the owner of a financial asset has nominated a beneficiary in the event of his or her death, this may override any stipulations made in a will.
Assets like RRSPs, TFSAs and insurance policies do not form part of the estate of the deceased. Therefore, probate is not required for the transfer of this asset after the death of the owner.
If a financial asset is owned in joint tenancy (with a spouse, for instance), it passes directly to the surviving owner. In such cases, the institution in question will likely request only a copy of the death certificate to release the asset.
If you are the personal representative of an estate and in any doubt, simply ask the institution what is required to proceed with the transfer of assets and you will be advised whether a grant of probate is required.
What is the process for probating a will?
To probate a will in Alberta, the personal representative must locate the original version of the latest will and then apply to the court for probate.
The application for probate must include:
- The original version of the will
- The date/location of the birth and death of the deceased
- A detailed list of all the assets and debts of the deceased
- The names, birth dates and contact details of the beneficiaries
After you have submitted your application, the court will review the documents. This may take some time but if everything is in order and the court has no further requests, a grant of probate is issued.
This process does not generally require a court appearance in person from the personal representative.
What do you do if you don’t know if a will needs probating?
If you are a personal representative of a deceased person and are unsure if a will needs to be probated or you expect a challenge to the will, it is best to discuss your situation with an estate planning lawyer as soon as possible.
The lawyers at Vest Estate Lawyers in Calgary will sit down with you and discuss any issues with the will and any assets that require probate.
Contact us here to schedule a consultation.