Probate and Administration
Schedule a confidential initial consultation, call 403-400-4092 or email Chris@NeufeldLegal.com
Probate and administration can be exceedingly challenging undertaking for any individual who has lost a dearly departed member of their family (be it a spouse, parent or other relative), such that tackling the legal requirements set forth in the law and by the courts can prove exceedingly daunting. It is at such times that you should be looking for the assistance of a capable probate lawyer to navigate you through the process, whether as the executor / trustee or as a beneficiary, such that the deceased's estate is properly administered and you are legally protected through this process. For the last thing that anyone wants is to be caught up in an entirely new legal mess that is the result of not seeking out appropriate legal representation and direction.
What is Probate?
Probate is the formal judicial process that provides Court recognition to a valid will and appointment of the executor or personal representative who will administer the decedent’s estate, settle their debts and liabilities, and distribute their assets to the intended beneficiaries.
Every jurisdiction has its own set of laws and rules related to probate and administration, such that it is strongly advised that you consult a lawyer admitted to practice in the relevant jurisdiction to determine whether probate (or an alternate Court process, such as administration) is necessary, and what specific actions must be undertaken.
Contrary to the claims of many vendors selling living trusts and other sophisticated estate planning products, most probate proceedings are neither expensive nor prolonged.
In Alberta (2023), probate fees payable to the Alberta Court of King’s Bench range from a low of $35 to a high of $525 (for estates with a net property value exceeding $250,000), plus lawyers’ fee, whose process of probating a will has been significantly streamlined and is far more efficiently undertaken with Alberta’s online Surrogate Digital Service.
Also, even though such estate planning strategies might avoid probate for specific assets, there might well be assets in the estate that require probate or circumstances could arise where the supposed probate avoidance strategy does not avoid probate.
Furthermore, the fact remains that that the core administrative and accounting work necessary to deal with the decedent’s estate, including resolving their debts and liabilities and collecting and distributing assets, must be undertaken irrespective of proceeding through probate or probate-avoidance strategies, such as living trusts, joint ownership and other more sophisticated estate planning techniques.
Many probate-avoidance strategies can prove quite expensive over time, given that the step-up cost alone can be quite significant, with ongoing maintenance costs and further costs incurred at the time of death. However, where these strategies have other estate planning purposes, they can prove highly beneficial for those particular purposes.
As such, avoiding probate can actually prove more costly than focusing on substantive issues tied to settling one’s estate and distributing one’s legacy to one’s intended beneficiaries, including (i) relinquishing control over one’s assets, (ii) making subsequent changes and alterations as to how those assets are dealt with, and (iii) avoiding future inheritance disputes and court litigation.
What is Administration and When is It Required?
Administration is the formal judicial process required in the absence of a valid will that enables the Court to name a capable personal representative and distributes all the assets of the decedent, wherein the Grant of Administration names the willing and capable applicant to act as the Personal Representative and to proceed with a plan to distribute the decedent’s assets, which proceeds in accordance with the jurisdiction’s applicable statutes for intestacy.
Every jurisdiction has its own set of laws and rules related to probate and administration, such that it is strongly advised that you consult a lawyer admitted to practice in the relevant jurisdiction to determine whether probate or administration is necessary, and what specific actions must be undertaken.
In Alberta, the principal statutes dealing with the estates of deceased persons and their administration are:
1. Estate Administration Act (the laws about dealing with an estate)
2. Wills and Succession Act (the laws about making a Will and who shares the estate if the deceased did not make a will)
3. Trustee Act (the roles and responsibilities for trustees, including Personal Representatives)
4. Surrogate Rules (the rules of court that apply when dealing with wills and estates, including when applying for a grant)
Together with case precedent, this forms the basis upon which the estate is to be administrated, in the absence of a valid will that deals with the disposition of the particular matter or asset. Conformity with the law is imperative, as the Court will review the application put before it and only issue the Grant of Administration when it is satisfied that it meets the jurisdiction’s statutory and legal requirements. And it is only through the Grant of Administration, that the Personal Representative is appointed and has the legal authority to administer the estate.
Once appointed as the Personal Representative, by the Grant of Administration, it is the Personal Representative’s responsibility and obligation to administer the decedent’s estate in accordance with the Grant. The Personal Representative owes a fiduciary duty of complete good faith to the estate and the beneficiaries. The Personal Representative must account to the beneficiaries on a regular basis, and is personally responsible for its distribution, including providing a full accounting of the estate and its distribution upon reasonable request.
Administration can be a relatively straightforward, procedural process, especially when undertaken with a lawyer that has the benefit of the Surrogate Digital Service to effectuate digital filing and processing of the legal paperwork with the Surrogate Division of the Court. However, where the matter is contentious and there are disagreements as between prospective appointees and/or beneficiaries, the proceeding can be quite tedious, time-consuming and expensive, with the relevant statutes and court precedent be the foundation for dictating the outcome, with the lawyers being pivotal to the process.
If you are looking to effectively dealing with your inheritance through appropriate estate planning documents, including wills and trust, or you need to deal with the death of a loved one, whether through probate or administration, our law firm can provide the appropriate legal assistance. To schedule a confidential initial consultation contact our law firm at 403-400-4092 or via email at Chris@NeufeldLegal.com.
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