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Probate & Estates Lawyer - Lethbridge Alberta
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Why Probate a Will?  Is Probate Necessary?

 

The authority of the Personal Representative (Estate Trustee/Executor) stems from his/her/its appointment under the Will of the deceased.  Such authority, although validated by the Courts in the Probate process, does not stem from this recognition.  Thus it can be said that Probate is a process whereby the Court formally recognizes the authority of the Personal Representative.  This recognition then validates the appointment giving third parties the "legal" assurance that the Will is valid and that the nominated Personal Representative can deal with the assets of the estate.

 

Therefore there are many estates, with or without Wills, which do not require Probate.  By reason of the nature of the assets no formal validation is required or necessary.  However, institutions like the Land Titles Office require, as a matter of course, such formal validation.  Conjuctively, the process of applying for Probate provides a public forum for the determinatin of issues such as capacity, determination of the "last" Will, interpretation of the wording and the like.  Once filed the application becomes a public record thus providing information to "interested parties" whether they be beneficiaries, creditors or someone having a claim by reason of the death of the testator.  This public record also provides the foundation for such interested parties to advance their claims in an orderly process supervised by the Courts. 

 

The last emphasis on this process is to provide some protection to the Personal Representative in the course of completing their duties.  By following "due process" personal liability is diminished.  The courts by applying a "reasonable and prudent person" test will exonerate Personal Representatives who operate in good faith.  Further, by following the "Probate Rules" pertaining to notices to creditors and other interested parties, the Personal Representative can distribute the estate with some degree of certainty and with little personal liability.