Or more precisely, what is a Grant of Probate?
In its most simple terms, a Grant of Probate is the Surrogate Court’s confirmation that a deceased person’s Will is valid, and that the named Executor is authorized to begin the process of administering the deceased’s Estate. The application for a Grant of Probate must demonstrate to the Court’s satisfaction that the Will meets the formal requirements of a Will as set out in Alberta’s Wills and Succession Act. These requirements are:
- Holographic (handwritten) Will – must be written entirely in the hand of the deceased, and signed by the Testator with no requirement for witnesses);
- Military Will – need not be handwritten or witnessed but the Testator must be an active member of the Canadian Armed Forces;
- Non-holographic Will – must be signed by the Testator and two witnesses – all in the presence of each other.
What is Included in an Application for a Grant of Probate?
In Alberta, the Application for the Grant of Probate will also include relevant information concerning the deceased including their date of birth, date of death, date of their will, their marital status, whether they left a spouse and/or children, a list of the specific and residuary beneficiaries and the nature of their bequests, and a schedule of their property and debts. The Application must also provide Notices to individuals who may have a claim to the deceased’s Estate, even if not named as beneficiaries, or a claim to a greater portion of the deceased’s Estate than stated in the Will. These include the deceased’s:
- adult interdependent partner;
- minor children;
- dependent children over the age of 18;
- the deceased’s grandchildren or great-grandchildren in respect of whom the deceased demonstrated a settled intention to treat as his or her own child.
By issuing a Grant of Probate, the Surrogate Court does not confirm the deceased’s testamentary capacity. If an interested party (typically a family member or potential beneficiary) disputes the deceased’s testamentary capacity at the time the Will was made, they must bring an Application for Formal Proof of Will which addresses whether or not the deceased had testamentary capacity (spoiler alert: this is something less than full mental capacity) or was under duress or coercion at the time they made the Will.
Receiving the Grant of Probate
Obtaining a Grant of Probate is really only the first step in administration of the deceased’s Estate. The named Executor (described as the ‘Personal Representative’ in the Grant of Probate), is now authorized to liquidate and deal with the deceased’s assets, pay legal debts, and pay or distribute bequests to the beneficiaries as described in the Will. The Land Titles Office and most financial institutions require that the Executor present a Grant of Probate before liquidating or transferring assets. The Personal Representative or Executor must also provide the residuary beneficiaries with an accounting of all money or other assets that come in and out of the Estate.
Administering an Estate Without a Will
In a situation where the deceased died intestate (without a Will), a person with priority to administer the Estate (typically first their spouse, then children, parents, siblings) will make a similar Application for a Grant of Administration. A Grant of Probate and Grant of Administration give the Personal Representative the same authority to administer the Estate, although distribution of the deceased’s Estate under a Grant of Administration will follow the legislated scheme of distribution as set out in the Wills and Succession Act.
There is an expectation that an Executor will apply for a Grant of Probate promptly after the deceased’s death and, once the Grant is issued, administer the deceased’s Estate in a timely manner. As a rule of thumb, the Estate should be fully or largely administered within “the Executor’s Year”; however, the time for administration may be more or less than one year depending on the circumstances and the extent of the deceased’s property.
Written by Gary Kirk