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What Is the Difference Between A Grant of Probate and Letters of Administration
Many people are unclear about the difference between Letters of Administration and a Grant of Probate. However, it is important to understand that the two are quite different. Probate vs. Letters of Administration is not a matter of choice. You must follow the law. Fortunately, it’s simple to understand the distinction. Every province in Canada is different, so the below applies to Alberta only. Always ensure that, if you live in Alberta, that you understand the process here. Kahane Law in Calgary helps people with estates regularly. We also have an Edmonton office to help people there. Our free consultation allows you definitely know the answer to the Probate vs. Letters of Administration issue. Call 403-225-8810 today.
What Are Letters of Administration?
If someone passes away and they die intestate, they will need to apply to the Surrogate Court for Letters of Administration. Dying intestate means that the individual does not have a will made before he or she passes. Those who die intestate will be subject to slightly different rules than those who are applying for a Grant of Probate. In determining the process between Probate vs. Letters of Administration, the existence of a will determines it all. In this case, the courts will grant legal power to the correct people, as according to law, to help deal with the deceased’s estate.
Generally when an individual dies intestate, her or his spouse will have the right to be the first to apply for Letters of Administration. Most of the time, this is exactly what happens to the estate. However, not all spouses know that they have this right. A lawyer works with them to understand all the legal filing requirements and what your rights are in these situation. While the forms are similar to probate forms, they are completely different in terms of Surrogate Court application requirements.
What Is A Grant Of Probate And Can You Avoid It?
When an executor is applying for a Grant of Probate, it means that the deceased died with an executed Will. However, the Surrogate Court (of the Court of Queen’s Bench) has to ensure that the Will is legally valid. It is important to remember that the Probate laws in Canada vary from province to province. Not all wills require a Grant of Probate. It depends on what is in the will and the estate. Further, it also depends on how the deceased set up her or his affairs prior to their death. For example, when you name beneficiaries for life insurance, the money goes directly to the beneficiary named in the policy. The insurance money does not enter the estate at all for distribution. There are also times when the courts will be involved if there is conflict over the probating of the estate.
Another thing that people do as a means to avoid having to apply for Probate is holding their assets jointly. For example, real property when held as joint tenants has a right of survivorship. When one of the owners passes away, the survivor will take full ownership of the property. The home never forms part of the probate process in Alberta. There are always dangers in having joint ownership, so make sure to speak with a qualified Estate lawyer before combining assets to hold them jointly. Failing to do so may create a situation inadvertently circumventing a testator’s last wishes.
Probate Vs. Letters Of Administration Not So Clear
There are times where there is a will but you still need to apply for apply for letters of administration. Probate vs. Letters of Administration maybe become a situation where you need both. For instance, in situations where a will provides for gifting most, but not all of, an estate. Probate will be required for the assets listed in the will, while items that are not included will require a letters of administration. Consequently, we always encourage residue provisions in every will to avoid this situation.
How To Apply Probate Vs. Letters Of Administration
Regardless of the Probate vs. Letters of Administration outcome, a Grant of Probate and Letters of Administration applications are similar in contents and filing procedures. In Alberta, both are filed with the Surrogate Court (part of the Court of Queen’s Bench). This occurs in the judicial district where the deceased had her or his primary residence. For example, if a person passes in Calgary, the estate files the paperwork in Calgary. It is possible for an Executor/Administrator to file the application on her or his own. However, the application is complex and nuanced and requires a level of understanding of the process and requirements. Failing to properly complete the application often delays the finalizing of the estate. This creates more work and stress for the executor.
Getting The Help You Need
Because there are so many variables when it comes to Probate vs. Letters of Administration applications, it is beneficial to have someone who knows the law. We provide these consultations for free. Specifically, you pay not fee to us to determine if you need to probate an estate or not. We also tell you if you require a Letter of Administration or not. Working with an experienced estate lawyer can ensure that any potential issues are sorted out with the estate and that the application is completed and the Grant obtained in a timely manner. Kahane Law Office located in Calgary, Alberta is here to help with a free consultation. The easiest way to set up and get a free review is to email us. Call today. 403-225-8810 or email us directly here.