By: Paul W. Quantz BA, LLB
We often get asked these two questions upon the death of an individual whose estate needs to be administered.
This is the court process by which a will is proven to be the authentic last will and testament of the deceased. Most of the time it is by way of a “desk application” to a justice of the Surrogate Court in the Judicial District in which the deceased last had his or her domicile. The application for probate is a form provided in the Rules of Court. The application discloses to the court details of the deceased’s circumstances, such as his family circumstance, marital status, property, and debts. The original will is appended with the application and will be reviewed by a justice and retained by the court in its records. If there is no will, the application is referred to as an “administration” of the estate, and family members, in a set progression of priority, are entitled to apply for the right to administer the estate of the deceased.
When Is Probate Necessary?
If the deceased has real estate in his or her own name that is not held in joint tenancy with another, probate is necessary. The land titles office will not recognize a will, without the grant of probate in processing or transferring the deceased’s property. If there are bank accounts and other items of personal property such as vehicles RVs and the like, it is advisable to obtain probate. With a Grant of Probate, the named personal representative should not have difficulty in liquidating the estate and ultimately transferring the estate assets to the beneficiaries. As long as probate has been granted by the court, in the absence of fraud, the executor of the estate is protected from liability, even if a new will is found later on and is probated as the deceased’s last will.
Only if the deceased’s titles are held in joint tenancy with another individual, and bank accounts and investments are also held jointly with another individual would we suggest not submitting the will to probate. However, it is becoming increasingly difficult to deal with creditors, personal accounts, and even utility providers where a grant of probate is not provided.
It is always important to consult with a competent lawyer, experienced in wills and estate law to determine whether probate of the will of a deceased person is necessary.
NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.