What is Probate?
Probate a will: If you have heard of probate, you have probably heard that it is a pain, that is it expensive, that it takes a long time, and that it is a complicated process. While some of those descriptions may be apt, they do not really tell you what the process means. The estates lawyers at Kahane Law Office located in both Edmonton and Calgary, Alberta, deal with these matters at affordable rates to take one thing off the grieving family.
What Is A Grant Of Probate?
When someone dies, they may leave behind a will detailing how they would like their estate to be handled, and who they would like to have take care of this process. To probate a will, or getting a grant of probate, gives the personal representative of the estate the court’s permission to go about their duties as executor or administrator of the estate. This is the only way for a person to get legal permission to administer the estate when there is a will. Watch our Video for more information on Probate.
Understanding The Process
The process of probating an estate is straight forward but not always followed. The assets of the deceased are supposed to be held in between the time that the person passes away until the court grants the final order. Probate is granted only after the courts receive all of the information necessary to declare that the will is valid. The executor or administrator of the estate then begins managing and distributing the assets. At times this happens under the direction of the courts. The Surrogate Court is the court responsible for the probating of estates. This court uses the Surrogate Court Rules for governing the probate process and procedures. Click here to learn more about getting help with probate.
Why is Probate Necessary?
If the estate is very small or simple, it may be possible to avoid applying to the court. For example, if the surviving spouse is a joint owner of all of the assets, it may not be necessary to probate a will. Most banks have some discretion to release funds without applying to the courts for an order. This happens when the account contains a smaller balance. However, most estates have at least a few complications that make going through this process a requirement. Some people try to avoid probate. In Alberta the government fees for probating an estate are very low. There are many risks with trying to avoid this process altogether. For example, learn more about the risk of avoiding probate with this short video.
When the deceased has a lot of investments, bank accounts, real estate, retirement plans, and other types of assets, the institutions holding these assets are going to require the probate of the will for their own legal protection. This signifies that the will is legal and binding, and reduces complications that might occur if other wills surface later.
What Happens If A Person Has No Will?
The process to probate a will in Alberta can be streamlined somewhat if the deceased has left behind a legally sound will. It also helps if they designated an executor prepared to take on this responsibility. When this is the case, the executor of the will submits an application, along with all of the necessary documents, to the courts in the jurisdictional district where the deceased resided. As long as the will and all other documents are complete and accurate, the process should take 3-4 months.
Probate A Will When the Deceased Did Not Leave a Will
Probate can become more complex when there is no will and/or no executor. Family members can apply to be administrators of the estate, but the courts will have the final approval. If there is no will, the whole process becomes more complex because there is no document stipulating how the deceased would like to divide the assets of the estate. The assets distribution then occurs based on Alberta estate law.
Problems That Arise When Probating An Estate
As with everything in life, problems come up when you least expect them to. Even when there is a will and an executor of the estate, the process to probate a will often takes many months to finally complete. For example, the process often slows if:
- Information is missing or inaccurate on the probate application;
- The will leaves a partial intestacy;
- The executor refuses or cannot accept the role as representative;
- The will might face dispute by family members or creditors;
- The estate is quite complex and there are many third-party requirements;
- There are beneficiary disputes; and lastly
- A beneficiary cannot be located.
Starting the Probate Process In Alberta
If an executor has been named in the will, the first step in the process to probate a will is for this person to submit an application to the appropriate surrogate court. If there is no executor, a family member or partner may apply to be appointed as an administrator.
Probate Lawyers Who Care
To receive more support to probate a will and throughout this entire process, families might consider receiving the support of a probate attorney in Alberta. Our probate team wants to help you. Kahane Law Office helps you when a family member or loved one has passed away and you are executor for them. Call In Edmonton (780) 571-8463 and in Calgary (403)-225-8810 or email us directly here today to contact us.