Common Errors / Mistakes with Probate
Neufeld Legal P.C. can be reached by telephone at 403-400-4092 or email Chris@NeufeldLegal.com
Dealing with the probate process can be time-consuming, frustrating, and potentially very costly; such that it is incumbent on the executor of the decedent's estate to avoid common errors through the probate process. Naturally, working with a knowledgeable and experienced probate lawyer can drastically reduce the potential for such errors, or make it that much easier to deal with errors and other challenges that due arise; nevertheless, by understanding what common errors are in the probate process, executors can be more confident in the administration of an estate that is being probated.
Applying for probate in Alberta with the Court of King's Bench: Surrogate Division can be a complex process, and errors are common, often leading to delays or rejection of the application. As you consider many of these potential errors, appropriate consideration should be given to retaining a probate lawyer that utilizes the Court of King's Bench: Surrogate Division online filing system and is capable of avoiding many of these paper filing errors (and more expeditiously correcting or otherwise addressing issues associated with probate filing and processing). Some of the more frequent errors and mistakes include:
I. Errors in the Application Itself (Forms and Information)
Missing or Incorrect Information: This is a very common reason for rejection. All forms must be completely and accurately filled out. This includes details about the deceased, the will (if applicable), personal representatives (executors), beneficiaries, and the estate's property and debts.
Incorrect Valuation of the Estate: Underestimating or overestimating the estate's value can lead to incorrect probate fees and potential disputes. Professional appraisals are often necessary for real estate and other significant assets.
Failure to Include All Required Forms: The Alberta Surrogate Rules prescribe specific forms (e.g., NC 1, NC 2, NC 3, NC 4, NC 5, NC 6, NC 7, NC 8, NC 19) for a Grant of Probate. Depending on the circumstances, additional forms might be required (e.g., NC 12 Renunciation of Probate, NC 17 Affidavit to Dispense with Bond, NC 18 Consent to Waive Bond, NC 20 Notice to Non-Residuary Beneficiaries).
Not Providing the Original Will and Death Certificate: The Court of King's Bench: Surrogate Division requires the original will (if one exists) for validation and a certified death certificate. Photocopies are generally not accepted.
Failing to Designate a Guardian for Incapacitated Beneficiaries: If a beneficiary is a minor or incapacitated, a legal guardian must be appointed to assess their rights and entitlements. Probate applications of can be rejected on this basis.
Not Adhering to Survivorship Periods: If the will includes a survivorship clause (e.g., a beneficiary must survive the deceased by a certain number of days), the affidavit can only be sworn after this period has ended.
Errors with Bond Requirements: If none of the personal representatives (executors) reside in Alberta, a bond is generally required. An application to dispense with the bond (NC 17 and NC 18) must be filed if applicable.
II. Errors in Estate Administration and Executor Duties
Failure to Notify All Interested Parties: Executors must identify and notify all beneficiaries named in the will, potential heirs (if no will), and creditors about the probate application and subsequent steps. Failing to do so can lead to disputes and legal challenges.
Not Understanding the Will's Instructions: Wills can be written in complex legal language. Misinterpreting the will's instructions can lead to improper distribution of assets and personal liability for the executor. Legal advice is often necessary to clarify ambiguities.
Poor Communication with Beneficiaries: Lack of regular and transparent communication with beneficiaries about the estate's status, timelines, and financial matters can lead to mistrust and disputes.
Mishandling Estate Funds: Executors must keep meticulous records of all financial transactions, including bank statements, receipts, and invoices. Using estate money for personal expenses or failing to provide proper accounting to beneficiaries can result in legal action.
Paying Beneficiaries Before Creditors/Debts: All estate debts, including taxes, must be paid before any assets are distributed to beneficiaries. Premature distribution can lead to the executor being personally liable for outstanding debts.
Unnecessary Delays: While probate can take time, executors are expected to administer the estate as quickly as possible. Undue delays can cause problems with assets and create tension among beneficiaries.
Failing to Protect Estate Assets: Executors have a duty to locate and protect all assets of the deceased, including homes, vehicles, and investments. Failure to do so (e.g., not having proper insurance, allowing assets to deteriorate) can lead to personal liability.
Incorrectly Handling Household Items and Personal Effects: These items often have sentimental value and can be a source of disputes. Executors should ensure fair and equitable distribution, especially for valuable or sentimental items.
Not Filing Required Tax Returns: Executors are responsible for filing tax returns for both the deceased and the estate and should obtain a Clearance Certificate from Revenue Canada in most cases. Engaging the services of a knowledgeable accountant can prove highly beneficial.
Trying to Do Everything Without Professional Help: While not legally required, navigating probate without a lawyer or accountant can significantly increase the risk of errors, delays, and personal liability for the executor, especially for complex estates. Meanwhile, the benefits realized from engaging the appropriate professionals can be invaluable.
III. How to Avoid (or mitigate against) Common Probate Errors:
Seek Legal Advice: Consulting with an experienced probate lawyer is highly recommended. They can guide you through the process, ensure all forms are correctly filled, and help you understand your duties and responsibilities as an executor. Also, the Surrogate Division's online probate filing system is only available to lawyers, and it can seriously expedite the probate process.
Be Meticulous with Documentation: Gather all necessary documents (original will, death certificate, financial statements, property deeds, etc.) and keep detailed, organized records of all transactions and communications.
Understand Executor Duties: Educate yourself on the responsibilities of an executor to avoid common pitfalls in estate administration.
Communicate Effectively: Maintain clear and regular communication with all beneficiaries and interested parties.
Prioritize Debts: Always ensure all debts and taxes are settled before distributing assets to beneficiaries.
Double-Check Everything: Before submitting any forms, thoroughly review them for accuracy and completeness. By being diligent and seeking professional assistance when needed, executors can significantly reduce the likelihood of errors and ensure a smoother probate process with the Alberta Court of King's Bench: Surrogate Division.
Contact our law firm today to learn how our legal team can help you with the legal demands following the death of a loved one, from probating the decedent's last will & testament to administering an estate where the decedent did not have a valid will. Contact our law firm at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
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