Grant of Probate versus Grant of Administration
Neufeld Legal P.C. can be reached by telephone at 403-400-4092 or email Chris@NeufeldLegal.com
When dealing with the estate of a deceased person, procedure is absolutely paramount, such that understanding which process needs to be followed by the person charged with settling the estate (known as the Executor or Personal Representative).
Critical to this procedure is determining which form of Grant must be sought from the Surrogate Division of the Court to allow the Executor to deal with the deceased person’s estate, be it a Grant of Probate or a Grant of Administration.
There are clear and distinct differences between a Grant of Probate and a Grant of Administration, as well as variants that apply to particular circumstances, either due to the insufficiency of the Will or the deceased person having property in multiple jurisdictions that is subject to probate or administration.
Grant of Probate
A Grant of Probate confirms:
• the Will is valid, and
• the appointment of the Personal Representative named in the Will.
The Executor named in a valid Will be capable dealing with the estate without a Grant. They may or may not need a grant to carry out their duties, depending on the assets in the estate. For example, if the deceased owned a house, the Personal Representative would need a grant to transfer ownership of or sell the house.
Grant of Administration with Will Annexed
A Grant of Administration with Will Annexed operates in much the same way as a Grant of Probate, with the additional step of appointing an Executor /Personal Representative to manage the estate according to the Will. T
his particular Grant is necessary where the Will itself is legally valid, but the Will:
• does not name an Executor/Personal Representative, or
• names an Executor/Personal Representative but they are not willing or able to act and no other Executor/Personal Representative is named or willing or able to act, or
• does not deal with all the deceased’s estate. (in such circumstances, the Court grants a Grant of Probate to deal with estate property under the Will and a Grant of Administration with Will Annexed to deal with estate property not included in the Will)
The Executor/Personal Representative must apply for a grant in the above situations unless all the property owned by the deceased does not form part of their estate. (For example, the property is owned in joint tenancy or designates beneficiaries.) No one has authority to deal with the deceased’s estate not covered by the Will until the court issues a grant of administration with will annexed.
Grant of Administration
A Grant of Administration authorizes the applicant to deal with estate property when:
• there is no Will, or
• the Will is not valid, and the Court has not declared the Will to be valid (if the Court declares an invalid Will to be valid, the Court issues a grant of probate instead)
There is a list of people who can apply for a Grant of Administration, in order of priority. The applicant must apply for a Grant of Administration where there is either no Will or the Will is not valid unless all the property owned by the deceased does not form part of their estate. (For example, the property is owned in joint tenancy or designates beneficiaries.) No one has authority to deal with the deceased person’s estate until the Court issues a grant of administration authorizing a named Personal Representative to act.
The Personal Representative must distribute the estate to the people who inherit the estate of an intestate person, as set out in the governing legislation, which in Alberta is the Wills and Succession Act.
Grant of Resealed Probate/Administration
If the deceased person lived in one province, but also owned property in another province, the Executor/Personal Administrator will oftentimes need to apply for a Grant of Probate or Grant of Administration (or corresponding Court Order) in the place where the deceased person lived and then apply for a Grant of Resealed Probate/Administration in the other province where the property is situated. A Grant of Resealed Probate/Administration allows the Executor/Personal Representative to only deal with the property situated in provinces other than the province of the decedent’s last residence.
For example, a Grant of Resealed Probate/Administration might be necessary where the deceased person lived in Ontario but also owned land in Alberta, such that the Executor would attain in Ontario a Certificate of Appointment of Estate Trustee (the equivalent of an Alberta Grant) and than proceed to attain in Alberta a Grant of Resealed Probate/Administration.
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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