Probate 101

When someone dies, their will directs  assets and debt  distribution and may need to go through probate. However, it can all be confusing with benefits, trust situations, and a potential  claim  against the estate to complicate probate. 

Here is some information to help you understand what it entails and why probate is essential.

What Happens in Probate?

Probate is the process of the court accepting a person’s will and recognizing someone as the executor who carries out the wishes of the deceased.

When someone dies, the family meets with an estate lawyer to discuss the will and helps determine if probate is necessary. If it is, several documents, including the will, are submitted to the court for review. A Grant of Probate will be issued, which may be a requirement for financial institutions to release assets to a representative.

A simple or straightforward estate or a smaller estate may not require probate. However, in more complex situations, probate validates the will, confirms that it is the most recently dated version, and authorizes the executor to begin their duties.

Without the probate process, there could potentially be an issue where different people state that they have a claim to the same assets.

How Long Does Probate Take?

The probate process typically takes between 6 and 12 weeks in Alberta, but this depends on several factors, including how busy the courts are at the time. In the case of backlogs, it could take several months in the courts and there is generally no way to speed this process up.

The probate process could also be affected by the number of documents, the complexity of the situation, and whether the court requires additional documentation.

After the probate is over, the executor can distribute the funds, but this process also takes time as they organize the estate and carry out the deceased’s wishes. Often the executor will need to wait for CRA to provide a clearance certificate.

What Assets Can Be Excluded from Probate?

One of the roles of an executor or administrator is to review the deceased person’s assets and debt situation and establish an inventory and value of the estate. It is a necessary step in applying for a probate grant and is beneficial for several other reasons.

When calculating the value of a person’s estate, the Grant of Probate process excludes specific property types, such as:

• Designated assets as specific gifts in a person’s will (depending on the amount of debt).
• Joint assets immediately pass to the surviving person. For instance, if two spouses jointly own a home, it will be transferred to the surviving spouse.
• Assets where specific beneficiaries are designated, including insurance policies, pension plans, retirement benefits, etc. These transfer to the listed beneficiary.
• The assets of a bankrupt estate where the assets may be vested with an insolvency trustee who will handle them.

Probate Isn't Always a Negative

While many see the probate process as a negative (since it is often quite lengthy), there are also benefits. To start, in many cases, the probate process is uneventful. If no one contests the will, probate may proceed without incident.

It also clarifies the deceased person’s wishes and ensures no conflicts or disputes about the validity of the will or the wishes of the deceased. It can provide clarity and peace of mind.

Get Professional Probate Advice 

Having a legal will and a plan for your estate is essential, and  Sinclair Law Office will guide you through the will and probate process to ensure your affairs are in order. Please schedule an appointment online or by calling us at (780) 963-4867.