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What Is Probate and Do I Need a Probate Lawyer?

October 13, 2020

Probate Lawyers

Author: Eleanor Carlson

I have been named executor of an estate in Alberta – What is probate and do I need a probate lawyer?

In Alberta, probate is the court processes that prove the validity of a will and provides the power and control to the executor (also known as a Personal Representative) to act on the instructions left in the will by the deceased.  Upon a successful granting of probate, the will is confirmed by the courts as the last valid will of the deceased.  

Importantly the process requires notice to those who are involved in the estate (directly through being named in the will) or should be involved in the will (through statute). For instance, if the deceased did not make any provisions for his or her spouse in the will, the spouse has to be notified of the probate. 

What does the probate process look like?

Speaking generally, probate looks like:

  1. Some investigation into the estate (What did the deceased own? Are there outstanding debts?);
  2.  A sizeable amount of paperwork (known as surrogate forms – found here);
  3. Swearing or affirming that paperwork in front of a Commissioner for Oaths; and
  4. A trip to the courthouse to file.  

The court clerks then review the forms. If they require any changes or have any concerns they will contact you for revisions. If the documents are in order, the forms will be provided to a Queen’s Bench Justice for review and, if all is in order, approval.  You will then be notified by the clerks that you have received a Grant of Probate. 

Handling probate without a lawyer

I can do this – probate seems easy!

In straightforward situations it can be relatively easy. If the will is straightforward and the estate is straightforward an executor may not require the professional assistance of a lawyer. 

If this is not the case an executor may want the assistance of a lawyer to help navigate through the application and filing processes.  

Wait a second – what is straightforward when it comes to a will and an estate? 

Sometimes it can be hard to know if a will or an estate is straightforward and an executor may not know whether they even need a lawyer. 

Things to consider

Questions to consider include:

  1. Does the will meet the formal requirements of a valid will?
  2. Is it clear what the testator’s estate is comprised of?
  3. Is the will clear as to who should receive the estate under the will?
  4. Did the testator exclude someone who is required by statute to receive notice of probate? 
  5. Should the executor take additional steps to locate creditors or debts of the deceased?

There are many other issues that may make a probate process contentious. 

Contentious probate

Wait another second – What is a contentious probate? 

A contentious probate means there is a dispute relating to the administration of the estate. 

This could be:

  • a dispute of the interpretation of a will, 
  • a dispute over the circumstances of the execution of the will (the capacity of the testator for instance), 
  • a dispute between the executor and a beneficiary, or 
  • a dispute of the worth of the estate… to name a few. 

Not all of these disputes can be avoided, but an executor who is aware of these issues at the outset is better able to take informed steps in the process and ideally better serve the estate.

Alberta Estate Lawyers 

Prior to retaining a lawyer outright, an executor may want to have a probate lawyer review the will and discuss the estate. The lawyer can help the executor flag potential issues which may indicated the estate would benefit from some professional ongoing assistance from a probate lawyer. 

If you have questions about the probate process, please contact Carbert Waite’s estate lawyers

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