Probate FAQs (Frequently-Asked Questions)
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What is probate, and is it always legally required?
Probate is the formal legal process where the Alberta Court of King’s Bench validates a deceased person's will and confirms the authority of the personal representative to manage the estate. While not always legally mandated, it is typically required if the estate includes real property held solely in the deceased's name or if financial institutions demand a Grant of Probate before releasing significant assets.
How do I determine if a specific Will is valid for the probate application?
To determine if a Will is valid for probate in Alberta, you must first confirm it meets the formal requirements of the Wills and Succession Act, which generally requires the document to be in writing and signed by the testator in the presence of two witnesses. Additionally, you must verify that it is the final original version, has not been revoked by a subsequent document (and in the case of a holograph Will, is written entirely in the testator's own handwriting and signed by them).
What are the primary responsibilities of an executor or personal representative during probate?
The primary responsibilities of a personal representative include identifying and securing the deceased's assets, settling all outstanding debts, and filing the final tax returns for the estate. Once all liabilities are cleared, the representative must then distribute the remaining property and funds to the beneficiaries in strict accordance with the terms of the will or Wills and Succession Act.
How long does the typical probate process take to attain a Grant of Probate?
For a straightforward estate
in Alberta, the initial application for a Grant of Probate can
takes between 1 to 3 weeks if filed with a lawyer through the Surrogate Digital
Service, while paper-based or complex applications can take 3 to 9
months or longer.
What are the estimated costs and government filing fees associated with a probate application?
Government filing fees for probate in Alberta are based on the gross value of the estate, ranging from $35 for estates under $10,000 to a maximum cap of $525 for estates valued over $250,000. In addition to these government filing fees, executors that engage the services of a lawyer can expect to pay legal fees that are reflective of the complexity of the particular estate.
Which types of assets are subject to probate, and which ones pass outside of the estate?
Assets held solely in the deceased's name, such as personal bank accounts, real estate without a right of survivorship, and non-designated investments, generally require probate to be legally transferred. Conversely, assets with named beneficiaries or joint ownership with right of survivorship, including most life insurance policies, RRSPs, and TFSAs, pass directly to the survivors outside of the estate.
What happens if an individual passes away without a valid Will (intestacy)?
If an individual passes away in Alberta without a valid Will, their estate is distributed according to the Wills and Succession Act, which prioritizes the surviving spouse or adult interdependent partner and children. If no immediate family members exist, the estate is allocated to more distant relatives, such as parents or siblings, based on a specific hierarchy established by provincial law.
Can the probate process be contested by family members or beneficiaries?
Yes, family members or beneficiaries in Alberta can contest the probate process by challenging the validity of the will based on grounds such as lack of testamentary capacity, undue influence, or improper execution. They may also initiate a claim under the Wills and Succession Act if they believe the deceased failed to provide adequate maintenance and support for eligible dependents.
How are outstanding debts and taxes handled before the beneficiaries receive their inheritance?
Under Alberta’s Estate Administration Act, the personal representative must identify and satisfy all legitimate debts, funeral expenses, and taxes from the estate's assets before any distribution to beneficiaries. To protect themselves from personal liability, the representative typically advertises for claimants and obtains a Tax Clearance Certificate from the Canada Revenue Agency to confirm all tax liabilities are settled.
Is it possible to access the deceased’s bank accounts or sell real estate before probate is granted?
Generally, Alberta financial institutions freeze a deceased person's accounts and land titles offices require a Grant of Probate to transfer real estate, making full access or a sale impossible before probate is granted. However, limited exceptions exist for paying funeral expenses and certain small estates, while real estate may sometimes be listed for sale "subject to probate" provided the closing occurs after the grant is issued.
What is the difference between a Grant of Probate and a Grant of Administration?
A Grant of Probate is issued by the Court when a deceased person left a valid will, officially confirming the appointment of the named executor to manage the estate. In contrast, a Grant of Administration is required when someone dies without a valid will, authorizing a court-appointed administrator to distribute the assets according to provincial intestacy laws.
Are there specific legal deadlines for filing probate documents after a death occurs?
In Alberta, there is no specific statutory deadline or fixed time limit within the Surrogate Rules for filing an application for a Grant of Probate after a death occurs. However, executors are generally expected to begin the process within one year to fulfill their fiduciary duties to beneficiaries and meet separate federal tax filing deadlines. The Canada Revenue Agency has strict deadlines for filing the deceased's final tax return (often April 30 of the following year or six months after death, whichever is later).
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.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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