Losing a loved one is a painful experience for anyone. Dealing with the emotional process of distributing assets in a complex probate case is overwhelming for anyone – especially during such a painful time. You don’t have to go through this alone. An experienced Edmonton probate lawyer can help guide you through the process and protect your legal rights throughout a probate case.
What is a probate lawyer?
Probate is the process through which a person’s estate is administered through the courts after his or her death. A case is opened with the probate court, and the person’s will is submitted to the court for acceptance. (If there are multiple wills, the court might need to determine which one controls.) If the person died without a will, default laws apply to determine who is a legal heir. These laws are known as the rules of intestate succession.
A probate lawyer has experience handling probate cases. He or she can advise beneficiaries on how best to protect their legal interest in an estate. Wills can be challenged, and sometimes mistakes are made in the distribution of property. Having a probate lawyer helps protect your legal and financial interest in the estate. Executors can also benefit from legal advice. A probate lawyer can also advise an executor on the rights and responsibilities that come with that office.
What’s an executor?
An executor is a person appointed by the court to administer an estate in probate. The executor must settle debts and claims against the estate, then distribute the remaining assets in accordance with the will or rules of intestate succession. Executors have certain obligations to beneficiaries. They must prevent waste in the estate assets, and they cannot put their own financial interests ahead of those of a beneficiary. Executors who commit waste, fraud, theft, or mismanagement can be removed by the court.
Can I probate a will without a lawyer?
As with other legal cases, you do have the right to represent yourself in court. But as with any other legal case, your legal rights will be better protected if you have hired a lawyer to represent your interests. Probate cases can raise all sorts of disputes. Beneficiaries may disagree on which will controls, or whether a will was validly executed, or who should be the executor, or what assets should go to whom. A probate lawyer will give you the best protection against these legal challenges.
Learn More → Edmonton Will Planning
What assets are subject to probate in Alberta?
Any assets a person holds in life can be distributed after his or her death. This includes personal property such as jewelry and household goods, but it also includes vehicles, real estate, equity in retirement accounts, stocks and other securities, investment accounts, and anything else of value.
Some assets pass directly to another person by operation of law. For example, a life insurance policy has a designated beneficiary who is entitled to payment upon the policy holder’s death. This occurs by operation of law (namely, the contract), so probate is not required. Bank accounts can also have “payable on death” designations. Some jointly held real estate can also pass directly to a co-owner on the death of any owner. In all of these examples, the transfer occurs by operation of law, so probate is not necessarily required. Of course, there might be other reasons to open probate in these cases (for example, if the validity of the will is being challenged). It is important to consult with a probate lawyer about your specific probate case.
What documents do I need to probate a will?
There are many documents that can be used to probate a will. Not every document will be required in every case. For example, you might need an Affidavit of Handwriting or Affidavit of Witnesses to prove that a will was validly executed, but these might not be necessary if the will is not being contested. In general, you will need:
- An application
- A death certificate
- The will
- An inventory of the estate’s assets and liabilities (debts)
- Required notice to interested parties (including spouses, beneficiaries, dependant children and any public trustee)
What happens if the executor doesn’t go through probate?
Probate is not always necessary in Alberta. Small estates that do not involve third parties (such as a financial institution) can be administered without going through the formal probate process. Third parties – especially financial institutions and retirement plan administrators – will often require a will to go through probate so they can be assured that the will is valid and their claim is recognized by the probate court. You may also need to go through probate if:
- There is no surviving spouse
- The value of the assets is substantial
- The assets are only in the name of the deceased
- The validity of the will is being challenged (or there is no will at all)
If the executor does not go through probate, and you believe they should, you have the right to challenge this decision in the probate court.
How long does probate take in Alberta?
The length of a probate case depends on the complexity of the case. In a case where the will is not challenged and there are few assets, probate can be accomplished quickly – usually within a matter of weeks. If there are disputes about the validity of the will, this can drag out into months of litigation. If the estate is entitled to benefits from a retirement account or life insurance policy, it could take time to settle the claim with the plan administrator. An experienced probate lawyer will be able to give you a better idea of the length of your case after learning the details of your particular circumstances.
Call Spectrum Family Law at (780) 756-0076 to schedule your free consultation with an experienced Edmonton probate lawyer. Our skilled lawyers have handled many different types of probate cases, and they can help guide your family through this difficult time. We have helped many Edmonton families protect their legal rights throughout the probate process.