Executors Probating Wills Without a Lawyer
If you are making or administering a will in Alberta, you will likely need to address the topic of probate at some point.
Probate is the process of legally validating a will and an executor’s authority to distribute the assets of the deceased.
In the majority of cases, the Alberta courts must issue a grant of probate before the personal representative responsible for administering the will can perform transfers of property to beneficiaries.
Because of the requirements of probate, loved ones may have to wait for their inheritance because the process can slow down the transfer of property after death. Some people take steps to avoid this when estate planning and we will consider the five main ways to achieve this…
Why try to avoid probate in Alberta?
Probate is usually requested by banks, land offices and other financial institutions before they will release assets to a personal representative of the deceased.
This means that the process of transferring property and other assets to beneficiaries is delayed until the grant of probate is issued by the Alberta courts.
How long this delay lasts depends on how busy the courts are at the time of the probate application. It can take up to six months to review your case and issue a grant of probate—longer if there are any issues with the application. However, more typically, it takes six to eight weeks if all the paperwork is in order.
On the face of it, there is little financial incentive to avoid probate. The fees for probate in Alberta are currently as follows:
|Estate value $10,000 or less
|Over $10,000 up to $25,000
|Over $25,000 up to $125,000
|Over $125,000 up to $250,000
However, if you hire a probate lawyer, as is common for many personal representatives, there are legal fees to meet on top of this.
A probate application requires a personal representative to gather considerable documentation, including the original will and proof of assets. This step alone can take a few weeks at a time when family members are also organizing the funeral and going through the grieving process.
For that reason, many testators (people who create wills) take steps to avoid probate for certain assets. By avoiding probate, these assets can pass to beneficiaries without delay after the death of the testator.
Is avoiding probate necessary?
You will need to weigh up several factors when planning your estate before deciding whether avoiding probate is the right option for you.
As well as the cost and time considerations involved with probate, you should consider some benefits of the process.
For instance, a grant of probate protects the executor of the will from legal action as it is a court order confirming the legal authority to act on behalf of the estate.
Going through probate also saves significant time, effort and costs associated with creating trusts that are designed for passing on assets without probate.
Furthermore, not everyone who makes a will can call upon reliable people to administer their estate. If no executor is named, the Alberta courts must appoint a competent person to administer the estate after the probate process.
5 ways to avoid probate in Alberta
Let’s assume that you have considered the pros and cons and decide that it is a good idea to take steps to go ahead with avoiding probate when estate planning.
There are five main ways to accomplish that legally in Alberta.
If you are planning to write a will, establish a living trust or “gift” assets, it can become complex.
Get legal assistance with your estate plan, starting with a one-on-one initial consultation with one of our experienced estate planning lawyers.