In Alberta, a Grant of Probate is the Surrogate Court’s certification that the will submitted by the Executor (otherwise known as the Personal Representative) meets the formal requirements of a will as set out in the Wills and Succession Act and is the last will executed by the deceased. The Grant of Probate gives the Personal Representative the legal authority to deal with the deceased’s property and administer/distribute the deceased’s estate assets in accordance with the will. In theory, the Personal Representative’s authority to act is found in the will, but as a practical matter, the financial institutions that hold the deceased’s investments require that a will go through probate and that a Grant of Probate be issued before releasing or transferring the estate assets to the Personal Representative.
The Land Titles Office will not give effect to any transfers of land, or discharge any mortgages, caveats, liens, etc., registered against title to the deceased person’s estate during the probate process unless presented with a certified copy of the Grant of Probate – even if the financial value of the deceased’s interest in property is nominal. This is to ensure they are not held liable for disbursing funds or transferring property to someone named as the Personal Representative of a will that is fraudulent, defective, or was revoked by a subsequent will.
Types of Estate Administration Grants
In some situations, for example, when there is no will, the will is invalid, or the will does not deal with all of the deceased person’s estate assets, certificates similar to the Grant of Probate may be issued. These include:
- Grants of Administration
- Administration with Will Annexed
- Administration of Unadministered Property
- Administration until Will is Found
- Administration for Preservation of Property
- Administration for the Purpose of Litigation
- Administration when the validity of a Will is in Question
- Administration During the Minority
- Absence, or Mental Incapacity of the Personal Representative(s),
- Supplemental Probate of Administration
- Re-sealed Grant from another jurisdiction
Avoiding Probate Proceedings Through Joint Ownership
It is not always necessary to obtain a Grant of Probate (or other Grants). This arises most often when a couple has made an estate plan in which their personal assets are held in joint names and real property is held in joint tenancy. Joint ownership carries a “right of survivorship” – the surviving account holder or land owner automatically acquires full ownership of the jointly owned assets, meaning the estate does not require probate.
Typically, the institution holding the asset will remove the name of the deceased upon receiving a death certificate issued by Alberta Vital Statistics or a Funeral Director’s Statement of Death. The Land Titles Office will remove the name of the deceased from title upon receipt of an Affidavit of Surviving Joint Tenant, to which a death certificate of Funeral Director’s Statement of Death must be attached.
How Kirk Montoute Dawson LLP Can Help You Navigate Estate Planning and Probate
If you are dealing with an estate that may require probate, the legal process can be complex, especially if the will is contested, assets are jointly held, or alternative grants are needed. At Kirk Montoute Dawson LLP, our experienced probate lawyers can help determine whether your estate requires probate, guide you through probate procedures, or assist with estate planning to avoid unnecessary delays.
Contact one of our lawyers for a personalized review of your situation. We’ll provide clear guidance on the next steps, ensuring the estate is administered smoothly and in compliance with Alberta’s laws.