Probate is the legal process that confirms a person’s will and gives authority to the executor to carry out their final wishes. While you won’t go through probate for your own estate, many people will encounter it when handling the affairs of a loved one. The choices you make now—such as preparing a will and selecting an executor—can greatly influence how smoothly probate unfolds.
A will is only formally recognized by the courts once probate has been granted, and having guidance from a probate lawyer can be helpful. If someone passes away without leaving a will, the court will appoint a representative to manage the estate on their behalf.
The probate process serves a few key functions, including the following:
- Confirmation of the deceased: the court must verify that the person who wrote the will, formally known as the testator, is deceased.
- Verification of the will: the court must ascertain whether the will the testator has drafted was in fact drafted by them and represents their true, final wishes.
- Granting authority to the executor: the executor or administrator (in cases where there isn’t a will) is given permission to execute the necessary tasks on behalf of the deceased, such as settling debts and distributing assets.
When you work with a probate lawyer to draft your will, you can make sure that the entire process of probate is as stress-free as possible for those you leave behind. To help you better understand the process, here is a step-by-step guide:
Initiating the probate process
In the event of the testator’s death, the named executor or appointed administrator must gather several copies of the death certificate.
Finding the most recent version of the will
The executor must locate the most recent copy of the deceased person’s will—whether it’s stored in a safety deposit box, held by the probate lawyer who drafted it, or kept in another secure place.
Applying for probate
With the will located, the executor must then apply for probate in the provincial court. The following is usually included in the application:
- Original will
- Death certificate
- Listed assets and approximate value
- Sworn statement written by the executor that details their duties
Court assessment and fees
The court assesses the value of the estate to determine the probate fees, known as the “estate administration tax.”
Grant of Probate
A Grant of Probate is issued when the court is satisfied that the will is legitimate and that they have all relevant documents. A Grant of Probate is a legal document that gives the executor the authority to distribute the assets of the estate in accordance with the will.
The gravity of the executor’s role
The executor’s role is a serious one, and beyond the distribution of assets, they are also responsible for settling any debts that may be outstanding, making sure all taxes are paid, and addressing any interpretational disputes over the will.
With this in mind, it’s essential that the testator select their executor with plenty of forethought. Ideally, the chosen person should be trustworthy, organized, and have at least a basic comprehension of estate management and its financial and legal aspects. For wills that are likely to be more complex in the event of your death, it might be worth appointing a lawyer who deals with will probate in Alberta as your executor.
While it is possible to manage the processes of probate and estate planning without professional guidance, having the expert advice of a probate lawyer when it comes to legal and financial matters can prove invaluable, both in terms of protecting your assets and protecting your loved ones from extra costs and stress when you die.
