Should I Probate a Will Without a Lawyer in Alberta?

If you were named as the executor of a will some time ago, by the time arrives to take up the role you may have already considered whether or not to appoint a probate lawyer to help.

However, many people have not. Executors may only become aware of the intricacies of the role when it is time to take it on. So, one of the first decisions required is whether to use an estate lawyer to probate the will.

A Grant of Probate is a legal document validating the will and giving the go-ahead to the executor to begin administering the estate. In Alberta, the document is signed by a Justice of the Surrogate Division of the Court of King’s Bench and, typically, financial institutions will not release or transfer any assets until this can be produced.

If the deceased didn’t leave a will, the legal authority to attend to the estate is only provided after you apply for a Grant of Administration, which serves the same purpose as a Grant of Probate.

It is important to begin the process of obtaining this as soon as possible after the death of a loved one so that there are no unnecessary delays or complaints from beneficiaries. There is no legal requirement in Alberta to appoint a lawyer to handle this process, but many executors find it easier to do so.

So, before you decide, let’s take a look at the pros and cons of hiring a lawyer to probate a will rather than managing it yourself.

Table of Contents

1. What are the pros of probate without a lawyer?
2. What are the cons of probate without a lawyer?
3. Estate administration checklist

Smaller estates where the testator has done proper planning can often avoid probate.

However, there is no straight answer.

Avoiding probate depends on the size of the estate, whether there is joint ownership of property, the number of creditors and beneficiaries, whether there is a threat to contest the will; and whether banks and financial institutions holding assets require probate in order to release the funds.

Probate is required when these factors exist:

• There is no surviving spouse as a joint tenant to receive title automatically upon the death of the deceased.
• The assets, especially real estate, are in the name of the deceased only.
• There are substantial funds in bank and brokerage accounts.
• The validity of the will is being questioned, or there is no will.
• The estate is the beneficiary of benefits from registered retirement plans.

Here is where experienced estate lawyers at Vest Estate can really help.

A frank discussion about whether any family members might contest the will is an essential first step in guiding the decision of whether probate is required.

If a will is going to be contested, then the probate process and resulting Grant of Probate protects you as the personal representative from having the Probate Court declare the will valid and that you can proceed as personal representative.

There are four main advantages to going it alone when probating a will:

For each of the advantages of probating a will without a lawyer, there is a corresponding disadvantage – particularly if events follow a more unpredictable path…

There are several major tasks for estate executors and these are laid out in some detail in the Estate Administration Act.

Following is a summary of these main tasks:

• Identify the assets and liabilities of the estate: review income tax returns to find income-generating assets and assets such as RRSPs, locate the contents of safety deposit boxes, etc.
• Notify the necessary organizations of the death: this includes the provincial and federal governments (so that benefits are stopped) as well as the financial institutions that hold the assets of the deceased.
• Administer and manage the estate: ensure that it is secure and insured and that beneficiaries are informed.
• Satisfy the debts and obligations of the estate: advertise for claimants, verify claims, and pay genuine debts and claims.
• Distribute the estate: ensure that assets are transferred to the correct beneficiaries, and prepare accounting for the expenses incurred during the administration of the estate.

As you can see, the work involved in probating a will and administering an estate is no small undertaking. That’s why most executors consider hiring a lawyer to help with the process.

If you are the executor of a will in Calgary and are considering whether to appoint an estate lawyer for assistance, speak to Vest Estate Lawyers before deciding on the next steps. Call us today at (403) 226-9757.