If you have recently lost a loved one or been named as a Personal Representative (also known as an executor, executrix, trustee, or administrator), you may be wondering what to do next. From helping you select the right forms to handling the more complex legal work, we’re here for you. Estate lawyers (also known as Probate lawyers) will be able to help you settle the estate, which includes identifying and distributing all the deceased’s assets, paying debts and taxes, 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 the deceased’s affairs, 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.
A knowledgeable Wills lawyer in Calgary will be able to assist you with:
- Interpreting a Will or Trust
- Grant of Probate
- Helping you navigate the paperwork
- Distribution of assets
- Estate litigation
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.
Personal Representative – The person, usually named in the Will, who is responsible for carrying out the instructions in the Will, as well as managing and distributing the deceased’s property and assets.
Estate Administration Checklist
When the time comes to administer a loved one’s affairs after his or her death, the process can feel overwhelming. The laws around estate administration are complex and the list of tasks can seem daunting, not to mention the added pressure of knowing that beneficiaries and family members are waiting you to receive their share of the estate or inheritance. With so many different tasks, the following checklist is helpful in getting started:
- Locate the Will & Codicils – this step usually requires you to contact the deceased’s spouse and/or lawyer to locate the Will. If the Will is kept in a safety deposit box, you will need your ID, the key to the box, and the deceased’s certificate of death in order to access the Will.
- Do the Preliminary Paperwork – the first piece of paperwork to be completed after a person’s death is something called a “Registration of Death.” This can be done by you or by another person – such as a spouse or next of kin. The funeral home will provide this form to the family and, once completed, they will send it to a registry which provides the death certificate.
- Funeral & Burial Arrangements – it is the legal responsibility of the Personal Representative to arrange for the burial or cremation of the deceased. Although the deceased may leave instructions for their preferences (such as cremation), you are not legally bound by these wishes, and can decide how best to proceed.
- Provide a List of Assets & Debts – to create this list you will need to review the deceased’s financial documents and contact the necessary organizations to collect tax returns, pensions plans, insurance benefits, title documents, etc. Once you have this information, you will write a complete list of the deceased’s assets and liabilities that includes all property, debts (including when they are due), and a list of the beneficiaries along with what they are to receive. Your list must also include registration information, certificate numbers, maturity dates, interest rates, and payment information.
- Write a Public Notice to Claimants – this is generally a good time to place an advertisement in the local newspaper to notify anyone who might wish to make a claim against the estate, such as creditors or someone the deceased owed money to. As a Personal Representative or Administrator, it is up to you whether you wish to publish a notice or not. It is generally recommended in order to protect yourself from any liability. Claimants have exactly one month to contact you about their claim; you should wait to file your application until this deadline has passed. If the estate is worth $100,000 or less, the notice only needs to be published once. If the estate is worth more, the notice must be posted a second time – at least five days apart. All notices must be published in the local newspaper.
- Ensure the Deceased’s Assets Are Secure & Taken Care Of – this varies depending on the situation, but may include making arrangements for the storage of valuables in a safety deposit box, ensuring the deceased’s home and vehicle are secure, cancelling credit cards, subscriptions, utilities, etc. If the deceased owned a business, the Personal Representative or Administrator must ensure proper management is in place for the business. If the deceased lived alone as a tenant, you would be responsible for contacting the landlord and emptying the contents of the property. You will also want to make sure there is insurance on the deceased’s home and any other assets that need to be insured.
- Notify Beneficiaries – it is the responsibility of the Personal Representative to send formal notice to family members who stand to receive an inheritance, named beneficiaries, and anyone else who may have claim to the estate.
- Apply for Grant of Probate – in most cases the Personal Representative must Probate the Will to prove its validity and be able to proceed with distributing the estate. There are a few instances where probate may not be necessary. These may include small estates where the institution holding the assets does not require probate in order to release the funds they hold to the PR to be distributed among the beneficiaries. You will need to speak with the financial institutions associated with the estate to determine if probate is necessary. Additionally, if there is any reason to suspect that the Will may be contested, it is a good idea to apply for Grant of Probate. A lawyer can help you with this step and ensure you fill out the legal paperwork completely and accurately. As soon as you receive the Grant of Probate, you can begin administering the estate.
- Wait Six Months or Request Release of Claims – Alberta law gives beneficiaries up to six months after probate is granted to come forward and contest a Will. During this time, the estate cannot be distributed. Alternatively, a Personal Representative or Administrator can ask the beneficiaries if they would be willing to sign a claim for release, stating that they do not wish to contest the Will. If all beneficiaries sign the release of claims, there is no need for the six-month window, and you can begin the process of distributing the estate.
- Gather & Sell Assets – as the Personal Representative or Administrator, you must transfer the deceased’s registered assets to yourself before they can be released to beneficiaries. Common examples of assets include real estate, vehicles, bonds, securities, and so on. It is very important to keep meticulous records of estate transfers and transactions for your own protection and to ensure that you are properly reimbursed. A lawyer can also provide a comprehensive checklist to ensure all assets are accounted for.
- Pay Any Debts, Taxes, Funeral, Probate, & Legal Expenses – if there is not enough money in the deceased’s estate to cover these costs, talk to an experienced Wills and Estates lawyer right away. An estates lawyer will ensure that you are not held personally liable for any amounts that are outstanding. After you have paid final taxes, you can apply for a Clearance Certificate from Canada Revenue Agency. Once you have obtained the certificate, you can begin distributing the estate.
- Distribute the Estate – you are finally ready to distribute the estate amongst family members who hold inheritance and beneficiaries; this includes cash (legacies) and gifts personal items (bequests). It is paramount to get receipts for everything that is distributed. It is also your duty as Personal Representative to ensure trusts are set up and possibly oversee them, if applicable. If there are minors or incapacitated beneficiaries, you can contact the Office of the Public Trustee for assistance.
- Accounting & Closing Duties – you will need to prepare a financial statement which includes income, expenses, assets, debts, and the distribution of the estate. This statement is given to the beneficiaries for review and approval. After all cheques have been cleared, you need to close the estate bank account and prepare a final report to give to beneficiaries.
Keep in mind that this is a very standard checklist of your duties as a Personal Representative. Every estate is different, and you may encounter additional tasks that are unique to the deceased’s estate. If you have recently been named as a Personal Representative, or you have questions about administering an estate, call or email us to book a free consultation with a Wills and Estates lawyer.
What If There Is No Will?
When a person passes away without a Will (also known as intestate), everything gets put on hold including the distribution of inheritances. No one has the authority to handle the deceased’s estate until a Grant of Administration is issued by the Surrogate Court of Alberta. If a Personal Representative has not been named, the decision to choose an Administrator falls to the courts. Alberta law acts under the assumption that the deceased person would want their property to go to their family. Up to three family members of the deceased can apply for a Grant of Administration. To learn more about your next steps if a loved one dies without a Will and applying for a Grant, visit our Grant of Administration page.
What if a Personal Representative Has Not Been Named or Does Not Want to Take on the Role?
In some cases, the deceased has not named a Personal Representative in their Will or the Personal Representative named in a Will is either unable or unwilling to assume the responsibility. When this happens, the court issues a court order known as a Grant of Administration with Will Annexed, that appoints an Administrator to execute the Will in accordance with the deceased’s wishes. If you have recently lost a family member and you are wondering what to do next, or you have questions about applying for a Grant of Administration, call or email us for a free consultation.
Alberta’s Estate Administration Act
There is special legislation surrounding how an estate can be administered in Alberta. The Estate Administration Act came into effect June 1, 2015, along with updated Surrogate Rules. Together, these documents dictate the laws for administering an estate in Alberta along with the primary tasks and general responsibilities related to administering an estate. The Estate Administration Act specifies that all Personal Representatives or Administrators must carry out their duties honestly and in accordance with the best interest of the deceased’s (testator) wishes, provided there is a Will. They must act promptly, so beneficiaries are not waiting indefinitely, and with care and diligence. The Act dictates that the estate must be administered as soon as is practicable and, if the Personal Representative delays the distribution of the estate, they must have a good reason to do so.
From a legal standpoint, the Estate Administration Act requires that…
- All legal obligations such as payment for outstanding debts, property tax, etc. are fulfilled and settled prior to distributing the estate;
- The wishes of the deceased for the distribution of their assets are honoured, so long as it is practicable and legal to do so;
- Any family members of the deceased who are dependants receive adequate financial support from the estate;
- The Personal Representative or Administrator becomes the voice of the deceased so-to-speak. In other words, they have total power over the estate, provided they follow the rules of the Act and the instructions in the Will; and
- Beneficiaries have the right to take a Personal Representative or Administrator to court if he or she is not fulfilling their duties or failing to follow the rules of the Act.
The Estate Administration Act is also a good resource for assisting Personal Representatives and lawyers by providing:
- A clear and comprehensive list of duties for Personal Representatives administering a loved one’s estate; and
- A detailed checklist for the lawyer and Personal Representative to follow when administering the estate.
Any applications or grants also fall under the Act. The Estate Administration Act is available for viewing or downloading online, or ordered from the Alberta Queen’s Printer.
What If A Personal Representative Fails or Is Unwilling To Fulfill His or Her Duties?
In this case another person, usually a beneficiary, may apply to the court to take on the role as Administrator. They also have the right to apply for Grant of Administration if the Personal Representative does not provide the required notices to family members, beneficiaries, the Public Trustee, or other parties affected by the deceased’s estate. If wish to apply to become an Administrator, or you have questions related estate administration, call or email us today book a free consultation.
Application for Grant of Probate
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. Probating a Will is the process of validating a Will in a court of law to prove that the Will is authentic and accurate. 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 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 to administer the estate through a Grant of Administration. 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. 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.
We’re Here for You
Administering an estate is not a quick and easy task, and Wills and Estates laws are complex and can be confusing. You may have many questions such as, “Do I need an Estate lawyer?”, “What are Estate lawyers’ fees in Calgary?”, or “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 Wills and Estates 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 get closure. Our initial consultations are free, so it won’t cost you anything to find out if you need the help of an estate lawyer. Call or email us today to speak to a lawyer and get all your estate questions answered.