A Grant of Probate is the type of court order that is given to appoint a person as trustee of the estate of someone who has died where there is a will. If there is no will, the order appointing the person as trustee of an estate is called a Grant of Administration. The branch of the court that hears this type of application is called the Surrogate Court of Alberta.
Probating a will loosely means “proving” a will. The Court is confirming that the document is, in fact, the last will and testament of the deceased and it is a valid will according to the law. An administrator is similarly only given authority to deal with the estate by court order.
Applications for a grant of probate or a grant of administration can be either contested or uncontested. Contested applications require a court appearance. Uncontested applications are still court applications but are made by filing paperwork with the Surrogate Court.
Sometimes it is not the will itself that is being contested. For example, it may be a valid will, but perhaps the deceased did not consider all of his or her obligations. Drafting a valid will can be done without a lawyer, but taking account of all of ones obligations can be complicated. Dependents must be considered and sometimes people do not even know that someone is a dependent. This often happens when someone is living with a partner. When legal rights and obligations arise because of a relationship it is not always easy to determine.
Another common problem is balancing obligations amongst dependents, such as in a blended family scenario. Other complications include tax issues and liabilities, when people borrow money or loan to people, especially their children. The court will sometimes issue a grant of probate or administration even if there is a dispute because someone has to be in a position to make decisions for the estate. In these circumstances the court can impose conditions and limitations on any grant depending on the nature of the dispute or problem facing the estate.
All applications for probate or administration must include specified information about the deceased, the deceased’s family, the estate, the will (if one was made), the beneficiaries, and the proposed trustee(s) and proof of service that all beneficiaries have been given notice. After the Court has considered the evidence provided with the application, the Court will issue a Grant of Probate or Grant of Administration if appropriate.
Subject to any disputes that may arise, once a person is granted authority under a Grant of Probate or Grant of Administration then that person has the legal authority to administer the estate. The formal title in Alberta is the “personal representative”, but a more colloquial name is “executor” or executrix”. You will also hear the term “trustee” used to refer to the personal representative.
Once the personal representative (“PR”) is appointed then his or her job is to administer the estate according to the will and within the laws of the Province of Alberta. The PR owes a duty of utmost good faith to the estate and the beneficiaries. The PR must account to the beneficiaries on a regular basis. This means that he or she has to account for every dollar of the estate upon reasonable request.
Subject to any special terms in a will, the role of the PR is generally to liquidate all assets and put the money into an estate account. From that account the PR must pay all applicable taxes and debts. Debt scan be hard to determine so there is a process to advertise for creditors. If not done properly then the PR can be held personally liable for any unpaid taxes and debts. It is extremely important that this process be done in a specific and timely manner to avoid possible liability to the PR. Once all taxes and debts are paid then the beneficiaries must be given their gifts as stated in the will and be provided with an accounting at the end of the process. As a general rule, a PR is allowed to take a fee for his or her administration of the estate.
An estate comes to an end once a Clearance Certificate is obtained from the Canada Revenue Agency and the residual beneficiaries sign a release confirming that they agree with how the estate was administered and distributed.