Estate challenges when executors probate an estate can cause stress, a delay in probate and additional costs to the estate. When a loved one passes away, you may be appointed to be the executor or personal representative of their estate. This means that you must handle the probating of the estate. If there is an estate challenge, problem or fight, it is your responsibility to deal with it. Executors do not have to deal with these challenges alone. Most wills allow the executor to hire a lawyer to help with probate. When hiring a probate lawyer the estate pays for the fees not the executor.
Probating an estate in Alberta refers to the process of distributing the assets of the deceased among beneficiaries and creditors appropriately. Even if there is a valid will that explains the wishes of the deceased person, the role of the executor of the estate can become extremely challenging and complex. Representatives of estates often look to the assistance of probate or estate lawyers to deal with common obstacles. It is the Alberta Surrogate Court that deals with Probate. The estate litigation lawyers at Kahane Law Office help executors or beneficiaries when facing estate challenges in Alberta while our probate lawyers help with the probate process.
The Will was Not Execute Properly
One of the most frequent mistakes made by people who do their own will is that they did not execute them properly. A will that is not executed properly may not be accepted as a will at all by the courts. In this case the executor will face the challenge of dealing with an estate that is intestate. Other times, even if the will was executed correctly, the affidavit proving it was done so is missing. This adds an extra challenge when the executor is probating the estate.
The Testator Lacked Capacity
If a person changes their will in the last days of their life, other estate challenges may be raised. Executors may have (potential) beneficiaries who claim the testator lacked capacity to change the will. This estate challenge may be a claim that the testator lacked mental capacity by reason of deterioration of mental ability, medication or pain that cause a lack of capacity or a family member who exerted undue pressure and direction to make the change.
Changes to a Will
It is not uncommon to change and update your will, as you grow older. However, the correct legal steps must be taken to ensure that the most recent will is considered valid. If not, the newest will may be contested or the executor of the estate may not know which version of the will should be honoured. In some instances, it will make more sense and be more cost effective to draft a new will rather than changing an old one. This can avoid estate challenges, problems or fights.
The best way to avoid this problem is to have an estate lawyer assist you with any changes you would like to make to a will. If you are an executor struggling to determine which version of a will is valid, an attorney can assist with this process as well.
Locating and Contacting All Beneficiaries
Sometimes the very act of finding the beneficiaries who are to receive assets can be extremely challenging. This could be because the will lists a large number of people or this could be because the will is vague. For example, the will may say “all of my nieces and nephews.” It is the duty of the executor to determine the identities of all of the deceased’s nieces and nephews and then contact each one. Another of the estate challenges an executor faces is when no one knows how to reach one of the beneficiaries.
Dealing with Legal Claims Against Estates
There are many reasons why a will may be contested. A creditor may feel entitled to part of the estate because of outstanding debts. A family member may claim that the deceased was not of a sound mental state when he or she first wrote the will. Someone might also file a legal claim against the estate if they suspect any fraudulent activity is taking place during the probating of the estate. These estate challenges usually require a lawyer to help deal with the issue.
It is the responsibility of the executor of the estate to ensure that all of the necessary legal procedures are followed during the probating process. If the will is contested for any reason, it is also the responsibility of the executor to defend the will and address any legal claims.
When there is a legal claim made against a will, it can be very difficult to know how to proceed in order to best represent the wishes of the deceased. To ensure that the rights of the deceased are respected and defended properly and legally, it is wise to hire the assistance of an experienced estate attorney.
Complex Estate Tax and Accounting Issues
The probating of an estate can be an extremely complex job, especially if the estate is especially large, the deceased has assets in multiple locations or if there is joint property involved. The probate process can entail navigating multiple investments, reading through insurance policies and dealing with many complicated financial and legal matters. These estate challenges can be very time consuming and it is permissible to hire a lawyer and/or accountant to help.
Someone without an extensive legal or financial background will understandably have difficulty even knowing how to begin probating a large estate. While modest or smaller estates could potentially avoid the probate process or only take a single day to settle, others can require weeks of work. This is when a qualified probate lawyer can be a valuable asset.
Getting the Executor Help You Need for Estate Challenges
The laws surrounding wills and estate administration have changed in Alberta. The Wills and Succession Act (as a PDF) or The new Act in HTML in Alberta was proclaimed in Alberta on February 1, 2012. This legislation incorporates substantial changes into the areas of wills and estates. Kahane Law Office would be pleased to assist you in deciding if you need help as executor or as a beneficiary dealing with estate challenges or problems. Call 403-225-8810 (1-877-225-8817 toll free) or email us directly here.