Grant of Probate
Neufeld Legal P.C. can be reached by telephone at 403-400-4092 or email Chris@NeufeldLegal.com
Probate and administration can be exceedingly challenging undertaking for any individual who has lost a dearly departed member of their family (be it a spouse, parent or other relative), such that tackling the legal requirements set forth in the law and by the courts can prove exceedingly daunting. It is at such times that you should be looking for the assistance of a capable probate lawyer to navigate you through the process, whether as the executor / trustee or as a beneficiary, such that the deceased's estate is properly administered and you are legally protected through this process. For the last thing that anyone wants is to be caught up in an entirely new legal mess that is the result of not seeking out appropriate legal representation and direction.
What is a Grant of Probate?
A Grant of Probate is a court order that confirms the person named in a deceased person’s Last Will & Testament, commonly referred to as the executor, has the required legal authority to deal with the deceased person’s estate as specified in the grant.
A Grant of Probate is the certification of the Surrogate Division of the Court that the deceased person’s Last Will & Testament, as submitted by the named executor, meets the formal legal requirements for a will in the applicable jurisdiction, meaning that it conforms with applicable statutes and laws, and that it is in fact the last will that was executed by the deceased person, and that the procedure set out in the will and the grant is to be followed.
With the Grant of Probate, the executor is legally authorized to deal with the deceased person’s property and administer/distribute the deceased person’s estate in accordance with the written terms and conditions set out in their Last Will & Testament. Although the executor’s legal authority emanates from the will, itself, most institutions and external entities will require the executor to present them with the Court-issued Grant of Probate, in an effort to protect themselves legally when they transfer the asset or money under their control away from the deceased person.
These entities have come to the position that they are better off making it their policy to require a Grant of Probate, as they can than contend their actions were undertaken pursuant to a Court Order. As such, financial institutions, such as banks, investment firms and trust companies, that hold the deceased person’s investments typically require that a Grant of Probate be issued before releasing or transferring assets and/or funds to the executor. The Land Titles Office does not give effect to transfers of land, or discharge any mortgages, caveats, liens, etc., registered against title to the deceased person’s property unless the Land Titles Office is presented with a certified copy of the Grant of Probate. For land and other property (such as mineral rights) held in joint tenancy, the process is to remove the deceased joint tenant from title by filing a Statutory Declaration re Proof of Death by the surviving joint tenant with the Land Titles Office, as per their requirements.
There are instances where a Grant of Probate is not necessary, where all the property transferences can be undertaken without an external party requiring the Court’s confirmation prior to proceeding. Those situations typically arise where all the property can be transferred without the need of the Grant of Probate, and the estate distribution should not be contentious, such that the executor is protecting themself once they have distributed the assets and property of the deceased person. The following property does not form part of the deceased person’s estate and is not included in the application for a Grant of Probate:
• Assets held in joint tenancy are transferred to the surviving owner by the right of survivorship after providing proof of death (usually a death certificate). If the deceased person owned land in joint tenancy, then the surviving owner must complete and file a “Statutory Declaration re Proof of Death” with Land Titles Office in Alberta. If the deceased owned a bank account or other property in joint tenancy, the surviving owner should check with the bank or registry to see what documents they need to transfer the title into the name of the surviving owner.
• Assets with a designated (named) beneficiary, such as RRSPs or insurance policies, are transferred directly to the named beneficiary once the executor gives the plan administrator or insurance company a copy of the death certificate.
Each province has authority to issue Grants of Probate dealing with property within their own borders. The Court of King’s Bench of Alberta can issue Grants of Probate to deal with property owned in Alberta by residents and non-residents of Alberta. If someone lived in Ontario and owned property in Ontario and Alberta, the Alberta court must issue a grant to deal with the Alberta property and the Ontario court must issue a grant to deal with the Ontario property.
The principal Alberta Statutes dealing with the estates of deceased persons and their administration are:
1. Estate Administration Act (the laws about dealing with an estate)
2. Wills and Succession Act (the laws about making a Will and who shares the estate if the deceased did not make a Will)
3. Trustee Act (the roles and responsibilities for trustees, including Personal Representatives)
4. Surrogate Rules (the rules of court that apply when dealing with Wills and estates, including when applying for a grant)
Contact our law firm today to learn how our legal team can help you with the legal demands following the death of a loved one, from probating the decedent's last will & testament to administering an estate where the decedent did not have a valid will. Contact our law firm at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.