What Is a Probate Lawyer and Why Do I Need One?
If you have recently lost a loved one, or you are a Personal Representative (also known as an executor, executrix, trustee, or administrator) named in a will, you may require the services of a probate lawyer, also known as an estate lawyer. An Estate is the legal term for the assets of a person, including land, money, and possessions at the time of that person’s death.* Probate lawyers help you settle an estate, which includes identifying and distributing all of the deceased’s assets, paying debts and taxes, paying inheritances, and providing for care of the deceased’s dependents. Those who are entitled to share in the deceased’s estate are called beneficiaries, and must be paid in accordance with the will. In Alberta, it normally falls to the Personal Representative to handle this process, and an experienced probate or estate lawyer helps ensure that the process is done correctly, and relieves the burden of doing complex legal work on your own.
Probate (Estate) Lawyer – A lawyer skilled at and experienced in the laws of Alberta as they apply to the wills and estates of deceased persons, who can help you through the process of probating a will and distributing an estate.
* Certain property of a deceased person will not be part of the estate, such as real estate that is owned in joint tenancy with others, or RRSPs or insurance policies that have a named beneficiary. Call or email us for more details.
Making the Probate Application
When you make a probate application, you are asking the Court to probate the will and to give you a Grant of Probate. Probating a will is the process of validating a will in a court of law so that it is certain that the will is authentic and accurate. When loved ones pass, there are often many relatives and dependents who have an interest in ensuring the proper and fair distribution of the deceased’s assets. Probate helps make that process open and transparent so that all concerned are satisfied that the deceased’s last wishes are known and followed. Another purpose of the Grant of Probate is to certify who has control over the deceased’s estate. That person is called the Personal Representative. Most times, the deceased has named a Personal Representative in his or her will, but in certain cases, such as when no will exists, it may be necessary for a Court to determine who to appoint as Personal Representative. In other cases, there may be no Personal Representative named in the will, or the named person is unwilling or unable to do it. In those cases, the Court can appoint an Administrator to deal with the deceased’s estate, in place of a Personal Representative. It may also be possible to apply for a Limited Grant of Probate if it is necessary to deal with one part of the estate before distributing the rest. This is typically used to allow a Personal Representative to sell real estate owned by the deceased, such as a family home, quickly and easily without having to wait for the entire probate process to finish. Making the probate application to the Court is an important step in probating the will, and an experienced probate lawyer will help you through this complex process, including getting a Personal Representative or Administrator named.
Personal Representative – The person, usually named in the will, who is responsible for carrying out the instructions in the will, and managing and distributing the deceased’s property and assets. In some cases, a Personal Representative may also be paid for the work he or she does when dealing with an estate.
If you have questions about applying for a Grant of Probate, a Limited Grant of Probate, or getting a Personal Representative or Administrator named, call or email us today for a free consultation.
Is a Grant of Probate Necessary?
It is not always necessary to apply for a Grant of Probate to deal with an estate. A Personal Representative named in a will may be able to distribute an estate without probating the will, but most times probate will be required if:
- The deceased owned real estate alone or jointly with others;
- The deceased had many assets;
- The estate is complex;
- A financial institution such as a bank or insurance company requires it to release assets of the deceased that they hold;
- There is a dispute among beneficiaries over the distribution of the deceased’s assets or the validity of the will.
It is important to find out as soon as possible if probate is necessary, particularly if you are a Personal Representative in an Alberta will. Alberta law requires Personal Representatives to deal with the will as soon as it is practicable. It is important not to delay the process, as beneficiaries of the will may grow impatient and turn to the courts to compel you to deal with the estate. Most probate and estate lawyers will offer a free initial consultation to help you determine what to do, what the deadlines are, and if you need to probate the will.
If you are unsure if probate is necessary, or if you wish to dispute a will, please call or email us anytime for a free consultation.
What If There is No Will or the Will is Invalid?
In certain cases, a loved one may pass without a will. This is known at law as Intestacy, or dying intestate. In the case that there is no will, a probate lawyer can help you apply for a Grant of Administration, which allows the Court to appoint up to three Administrators to distribute the estate of deceased person. The law in Alberta has rules about who may be appointed Administrator, and provides a list of who is eligible in order of preference:
- Spouses or partners;
- Nieces or nephews who are named beneficiaries;
- Next of kin who are named beneficiaries;
- A person with an interest in the estate because of a relationship with the deceased;
- A claimant against the estate;
- The Government of Alberta.
Testator – A person who has made a will.
Intestacy – Dying without a will; when the deceased passes without a will, he or she is said to have died intestate.
If you have questions about who may be named Administrator, or about applying for a Grant of Administration, call or email us today for a free consultation.
How Long Does Probate Take?
One of the questions we get the most is, “How long will probate take?” The truth is that each estate is different, and the process can vary greatly depending on the complexity of the estate, the value and type of assets, the cooperation of the beneficiaries, and many other factors. You can expect the process to take at least 2 months, but in more complicated cases it’s not uncommon for probate to last a year or more. It’s important to get the process right, not only to fulfill the deceased’s wishes and to distribute the estate fairly and accurately, but also to protect the Personal Representative from facing personal liability. An experienced probate or estate lawyer can help fulfill all of these goals, and perhaps speed up parts of the process. For example, a Limited Grant of Probate is one tool that estate lawyers in Alberta use to help Personal Representatives sell the deceased’s real estate and distribute the proceeds more quickly. Estate administration can be complex and time-consuming, and in many cases it is a good idea to hire a lawyer to help you through it.
If you have questions about how long probate will take, how a lawyer can help, or how to protect yourself if you are a Personal Representative, call or email us now for a free consultation.
Estate Laws and Forms
Alberta has many laws that specifically apply to estates, and many more that may apply depending on the circumstances. The main laws are:
- The Surrogate Rules of Court;
- The Estate Administration Act;
- The Wills and Succession Act; and
- The Trustee Act.
The Surrogate Court is a division of the Court of Queen’s Bench of Alberta that deals with wills and estates. There are specific rules that apply at Surrogate Court, and specific forms to use in that venue; an experienced probate or estate lawyer will be well-versed in the laws and forms. Surrogate Court Forms are found at www.qp.alberta.ca; search for “Surrogate Rules Package.”
Probate and Estate Lawyers’ Fees
The Province of Alberta’s probate fees are relatively low; currently the maximum fee is $525. The more valuable the estate, the higher the government probate fees. There are also additional fees depending on the forms and applications necessary to probate the estate, ranging from $35 to $250. For a current fee schedule, visit https://www.alberta.ca/court-fees.aspx. Lawyers’ fees for probating an estate vary depending on the size and complexity of the estate, the local rates, and the experience of the lawyer. Probate or estate lawyers typically charge either a flat fee, or a percentage of the value of the estate, or a combination of both.
If you need help with probate fees or forms, or if you have questions about how much it costs to probate an estate in Alberta, call or email us for a free consultation.
After Probate Has Been Granted
Responsibilities of the Personal Representative don’t end after probate has been granted, in fact they’re only beginning. Following the death of a loved it one, it can be difficult to focus on the numerous tasks, mundane and complex, that have to be done with an estate. An experienced probate and estate lawyer can help you not only with probate but also with your task list, which includes:
- Accounting for all assets;
- Tallying and paying debts;
- Completing tax returns and paying taxes due; and
- Distribution of assets to beneficiaries.
We Are Calgary’s Probate and Estate Lawyers
The issues surrounding estate law are complex and can be confusing. You may have many questions such as, “Do I need to probate a will?”, “What are probate lawyers’ fees in Calgary?”, and “How much does probate cost in Alberta?” Whether you are a Personal Representative, a beneficiary to a will, or you have lost a loved one and have questions about Alberta estate law, we can help. Our experienced Calgary probate lawyers have been helping Albertans with estate law issues for decades. We understand Alberta estate law inside and out, and we’re here to take care of the legal work and paperwork, so you can focus on taking care of yourself and your family, and getting closure. Our initial consultations are free, so it won’t cost you anything to find out if you need the help of a probate lawyer. Call or email us today to speak to a lawyer and get all of your probate and estate questions answered.