ANCILLARY GRANT of PROBATE
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An ancillary grant of probate is a legal mechanism used when a deceased person leaves behind real property or significant assets in a jurisdiction other than where they resided. Since laws governing land and tangible assets are local, a primary grant of probate issued in one province or country is generally not legally binding in another. In the context of Alberta, this process ensures that the local Surrogate Court recognizes the authority of the personal representative to deal with Alberta-based assets. Without this secondary validation, land titles and financial institutions in Alberta often refuse to transfer ownership, as they require a court-validated document issued by their own sovereign legal system.
When a person dies while residing in another province or country but owns real estate in Alberta, the primary probate is usually obtained in their home jurisdiction first. Once that primary grant is issued, the executor must then apply for a Grant of Resealing or an Ancillary Grant within Alberta to manage the local property. This is a very precise process, which must follow specific procedural requirements established by the Alberta Court of King's Bench, with technical errors only further drawing out the process and increasing the costs associated with administering the estate. With the Land Titles Act (Alberta) specifically requiring a localized court order to change the registered owner of a parcel of land in Alberta, these steps cannot be circumvented.
The process functions similarly in reverse if an Albertan passes away owning property in a different jurisdiction, such as a vacation home in British Columbia or Arizona. The Alberta executor would first secure the primary grant in Alberta, confirming their status as the rightful representative of the estate. Following this, they must engage legal counsel in the foreign jurisdiction to reseal the Alberta grant of probate or apply for a completely new ancillary grant according to that region's specific probate laws. Each jurisdiction has its own fee structures and timelines, meaning an estate with multi-jurisdictional holdings will inevitably face higher administrative costs and longer delays.
Legal complexity increases significantly when the primary probate is undertaken outside of a Commonwealth jurisdiction, as resealing is often a streamlined process reserved for Commonwealth countries. If the original grant comes from a non-Commonwealth country, such as the United States, the Alberta court may require a full application for an Ancillary Grant of Probate rather than a simple resealing. This often requires the executor to prove the validity of the foreign will according to the Wills and Succession Act (Alberta). Furthermore, the court may demand that the executor post a bond to protect local creditors, adding an extra layer of financial scrutiny to the proceedings.
One of the primary reasons for the necessity of these grants is the principle of lex situs, which dictates that the law of the place where the property is situated governs the transfer of that property. While a person's moveable property (like bank accounts or stocks) might sometimes be managed using the primary grant, immoveable property (real estate) almost always triggers the need for an ancillary process. This ensures that the local government can collect appropriate taxes and that any local creditors have a chance to make claims against the estate assets located within their borders. Failing to address these requirements can lead to a clouded title, making it impossible for the heirs to sell or mortgage the property in the future.
Strategically, individuals with assets in multiple jurisdictions should consider implementing advance estate planning strategies to avoid the need for ancillary probate altogether. Avoiding the stress, delays and cost associated ancillary probate (or resealing probate), should be at the forefront of estate planning when you own foreign property. Moreover, understanding the nuances of ancillary grants is crucial for any executor, as it prevents the legal gridlock that occurs when an estate’s reach extends beyond a single set of borders.
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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