Legal Brief for April, 2010

Probating A Will - What's It All About?  

When I am preparing Wills for clients, I am often asked "What is involved in probating a will, and when is it necessary?"   "Probating" of a Will is something that most people have heard about, but is subject to much misinformation and misunderstanding.

The term "probating a will" refers to the process of obtaining from the Court of Queen's Bench what is known as a Grant of Probate in respect of a deceased person's Will.  The actual Grant is a one page document issued by the Court.  It certifies that the executors named in the Will now have legal power to deal with the assets of the deceased, and that they are now authorized to transfer the assets pursuant to the terms of the deceased's Will, a copy of which is attached to the Grant document.

Not every Will needs to be probated.  It only needs to be applied for when the deceased owned assets that were registered in his or her name alone, and the transfer of title to those assets is in the hands of a third party.  An example is a piece of real estate that is owned by the deceased in his or her name only.  In order to be able to transfer ownership of the house to the beneficiaries listed in the Will, the executors will have to ask the Land Titles Office to issue a new Certificate of Title based on the terms of the Will.  The Land Titles Office needs some assurance that the Will produced by the executor as the basis for the transfer is a) a valid and genuine document signed by the deceased; b) there are no Wills made by the deceased subsequent to the date of the Will (which might leave the property to a different person); and c) the executor has proper legal status to transfer the assets of the deceased.  

A Grant of Probate is the certification of the Court "in writing" on all three of these concerns.  This certification provides assurance to the transferring party that it can safely process the transfer of ownership from the deceased to the beneficiaries.

If a deceased has their assets in joint names with another party, which is common in the case of married couples, then a probate is not usually required.  That is the result of what is known as the "right of survivorship" inherent in the joint ownership of assets, such as owning real estate as "joint tenants.  " In those cases, it is not necessary to obtain a Grant of Probate for those assets, and in actual fact such jointly owned assets do not even form part of the deceased's estate.

The application for the grant of probate involves completing a number of legal forms prescribed by the Court of Queen's Bench, and then filing them with the Court for review.  There is no court appearance required in a standard probate application.  An executor can fill out the forms and file them personally, or can retain a lawyer to do the that work instead.  The Court will charge a fee for issuing the Grant of Probate based on the net value of the estate.  In Alberta the maximum fee that is currently levied by the Court is $400.00 for estates with a net value of $250,000.00 or greater.  The fee is less for estates below that figure.  Legal fees charged by lawyers for the probate work will vary.

There are a number of reasons why an executor should meet with a lawyer as soon as possible after the death of a deceased to determine if it will be necessary or not to apply for a Grant of Probate, not the least of which is the fact that it is currently taking the Court of Queen's Bench office in Edmonton roughly three to four months to process a probate application and to issue the actual Grant of Probate.