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Probate & Estates – Thiessen Law

Probate & Estates

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.

Helpful Information

A new Wills and Succession Act has been passed by the Alberta Legislature. Proclamation is expected in early 2012. Once in force, it will have significant impact on wills and succession practice in Alberta.

 

Alberta Justice released a useful information guide on April 27th, 2011 that details the changes that will come into effect soon.  A copy of this guide can be found here:

Guide to Wills and Succession Act 

The Executor, also known as a personal representative, is responsible for administering the estate of the deceased. Below are details of the more important duties that may be involved.

  • arranging and paying for the funeral;
  • reviewing and understanding the will;…
  • locating, understanding and filing claims for any life insurance;
  • attending to day-to-day matters:
    • re-routing mail- destroying charge cards;
    • cancelling subscriptions;
    • co-op equity payout etc.;
  • getting information on the beneficiaries and family members names, addresses, birth dates etc.;
  • getting information in order to inventory the estate;
  • locating bank accounts, safety deposit boxes, notifying the banks of death;
  • contacting the employer to collect any unpaid wages and benefits;
  • valuing the estate as at the date of the death, obtaining appraisals if needed;
  • arranging for storage of assets;
  • making a list of the deceased’s liabilities;
  • seeing a lawyer to probate the will;
  • filing claims for government benefits (CPP etc.);
  • opening estate bank accounts, paying debts;
  • scheduling the cash needs of the estate;
  • deciding if assets need to be sold (ensure that the terms of the will are complied with);
  • filing tax returns (see an accountant);
    • Note: beneficiaries should not be paid until a Tax Clearance Certificate is obtained otherwise you are personally liable for the tax payable;
  • tax planning post death (consult a tax expert if 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 Courts 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.  Once appointed as the Personal Representative of the Estate what duties are involved?

 

Personal Representatives’ Duties (as detailed by Surrogate Rules, Alta Reg 130/1995)

  1. Making arrangements for the disposition of the body and for funeral, memorial or other similar services.
  2. Determining the names and addresses of those beneficially entitled to the estate property and notifying them of their interests.
  3. Arranging with a bank, trust company or other financial institution for a list of the contents of a safety deposit box.
  4. Determining the full nature and value of property and debts of the deceased as at the date of death and compiling a list, including the value of all land and buildings and a summary of outstanding mortgages, leases and other encumbrances.
  5. Examining existing insurance policies, advising insurance companies of the death and placing additional insurance, if necessary.
  6. Protecting or securing the safety of any estate property.
  7. Providing for the protection and supervision of vacant land and buildings.
  8. Arranging for the proper management of the estate property, including continuing business operations, taking control of property and selling property.
  9. Retaining a lawyer to advise on the administration of the estate, to apply for a grant from the court or to bring any matter before the court.
  10. Applying for any pensions, annuities, death benefits, life insurance or other benefits payable to the estate.
  11. Advising any joint tenancy beneficiaries of the death of the deceased.
  12. Advising any designated beneficiaries of their interests under life insurance or other property passing outside the will.
  13. Arranging for the payment of debts and expenses owed by the deceased and the estate.
  14. Determining whether to advertise for claimants, checking all claims and making payments as funds become available.
  15. Taking the steps necessary to finalize the amount payable if the legitimacy or amount of a debt is in issue.
  16. Determining the income tax or other tax liability of the deceased and of the estate, filing the necessary returns, paying any tax owing and obtaining income tax or other tax clearance certificates before distributing the estate property.
  17. Instructing a lawyer in any litigation.
  18. Complying with the requirement for filing an acknowledgment of trustee(s) before distributing any property to a trustee.
  19. Preparing the personal representative’s financial statements, a proposed compensation schedule and a proposed final distribution schedule.
  20. Distributing the estate property in accordance with the will or intestate succession provisions.

This resource is a useful starting point when determining the details of the Estate and will provide the basis for an application for Probate (if required).

Try to fill out as much information on the form as accurately possible ahead of your appointment with the lawyer:

Estate Information Form