If you have had the misfortune of having a death in the family of late, you will know the difficulty that can come with what is commonly known as “final arrangements.”  Your life is usually put on hold for about 7 to 10 days while you make and/or carry out funeral arrangements, burials, cremations, and in some cases, long-distance travel.  When all that has concluded, it is then time to deal with one of the more important legacies of the deceased – the Estate.

In short, an Estate is any property owned by a person who has died.  Estates are a relatively simple matter when the deceased dies leaving a spouse, as the common practice is to leave the entire Estate to the surviving spouse.  The complications arise when the deceased dies leaving no surviving spouse.  When this happens, the Estate is usually divided up among children, extended family members, or donated to charitable organizations – as per the directions of that deceased person’s will.  The Will appoints someone, usually called an Executor, Trustee, or Personal Representative, to carry out the wishes in the Will.  However, some Executors are surprised to find out that, in many cases, a Will simply is not enough to carry out the intentions of the deceased.  In many instances, the Will needs to go through a procedure called “Probate.”

Probate, in short, is a process where a Will is proven to be the last will and testament of the deceased.  Probate is most commonly needed when selling or transferring any form of ‘real property’ (i.e. a house, land), that forms part of the Estate.  The Land Titles Office of Alberta will not permit any transfer of the land of a deceased person without first receiving a Probate grant.  This is a requirement by law.  Other instances where probate may be necessary is when dealing with banks or investment firms, as some institutions have a standing policy requiring proof of a grant of probate before they allow the Executor to access account funds.  It should be noted that some banks do allow the Executor to access the accounts for bill payments, tax accounts, and other such matters, usually by showing the bank the will, the death certificate of the deceased, your identification, and the bill that needs paying.  You will need to discuss this with the bank, and possibly also have your lawyer discuss it with them.

The Probate application process is rather long and is very document intensive.  The application itself is, essentially, a series of sworn affidavits made primarily by the Executor named in the will, with various other schedules giving information on the Estate.  While you do not need a lawyer to complete and file the application per se, situations commonly arise in an estate administration that require you seeking some form of legal advice.  The clerks at the Courthouse cannot and will not give you the proper forms, or any legal advice, and will likely tell you to seek out a lawyer.  It is highly advisable to seek out an experienced lawyer when going through this process, as a lawyer can see the pitfalls that may lie in the way and work efficiently around them.  As for cost, what a lawyer can charge for preparing a probate application is actually governed by law, and is dependant upon the value of the Estate.  Furthermore, these lawyer costs are most often to be paid out of the Estate, so the Executor does not have to face any out-of-pocket expenses.  Retaining a professional can ease the process, can help bring better closure to the situation, and allow everyone affected by this death to get on with their lives.

Jay Palmer is a former associate with Letourneau Law.