Estate Planning + Administration FAQ

Estate Planning and Estate Administration
Frequently Asked Questions

It is very important to plan out what will happen to you and your estate to ensure
that things happen the way you want them to happen.


At LETOURNEAU LLP, we can assist you with any of the following:
  • Last Will and Testament
  • Enduring Power of Attorney
  • Personal Directive
  • Limited Power of Attorney
  • Grant of Probate Application
  • Grant of Administration Application
  • Guardianship or Trusteeship Application
  • Estate litigation
  • Estate Arbitration
  • Estate Mediation

Do I need a will?

Everybody should have a will in place.  Without a properly drafted and executed will in place, you will have no say in who administers your estate, and in who inherits your estate.  Wouldn't you want to have a say in these important decisions?

What happens when I don't have a will?

If you pass away without a will your estate is considered “intestate.” This means the current legislation will dictate who can administer your estate, and who the beneficiaries are. For example, you may want your entire estate to transfer to your surviving spouse/ or common-law partner upon death; however, there are a number of variables in the intestacy rules that could prevent this from happening, such as blended family dynamics, the value of the estate, or the recognition of common-law partnerships under the law. Moreover, these rules vary from province to province. Eventually, your estate will be administered, but under intestacy it may not be administered by and to whom you wish. 

What is probate and when is it required?

Probate is an application asking the Court to verify the will and to appoint a personal representative (also know as the executor/trustee). Once a grant of probate is issued, the personal representative will have the authority to administer the estate according to the will. There are several situations where probate will be required; for example, if the deceased was the sole owner of land, or the deceased held funds at a bank or financial institution that requires probate before the assets are released. Depending on the value of the estate, there may be situations where a bank or financial institution does not require probate; however, it may be prudent for a personal representative to still obtain a grant of probate in order to obtain certain legal protections through the administration of the estate.   

What is a grant of administration?

A grant of administration is like a grant of probate; however, the court application consists of a personal representative seeking to administer the estate where the deceased died without a will. Who may apply for grant of administration is based on an order of priority as set out in the Estate Administration Act

What is a living will?

Most lawyers refer to a living will when speaking about a Personal Directive or an Enduring Power of Attorney.  In other words, these documents outline your wishes for when you are still alive, but may not wish to make decisions for yourself, or have become incapacitated.  A Personal Directive names an agent (someone that you trust), who will make important decisions on your behalf about your health care, where you reside, activities that you participate in, and important decisions such as life support or pain medication implementation.  An Enduring Power of Attorney names someone that you trust to take care of all of the things outside of your physical body.  Examples might be filing your taxes, paying your bills, renting out your house, getting your mail, making investments on your behalf, or buying the things that you need.  Together, a Personal Directive and Enduring Power of Attorney are essential documents to have in place to ensure that your wishes are followed when the time comes.  Without these important documents, someone may need to make an application to the Court for guardianship or trusteeship in order to assist you and your estate while you are incapacitated.  This can add significant cost, emotional output, and delay in dealing with your important personal matters.

How is it determined if I am incapacitated?

In most instances, a physician or more than one physician will need to assess you and then sign a declaration saying that they deem you incapacitated, and that your Personal Directive or your Enduring Power of Attorney should become activated.

What does the Wills and Succession Act say about dying without a valid will?

The Act provides a formula, per se, for when you do not have a will in place, or for when your will is deemed invalid (i.e. improperly drafted or executed).  

For example: 

If an individual dies leaving a surviving spouse or adult interdependent partner but no descendants, the entirety of the intestate estate goes to the surviving spouse or adult interdependent partner.

If an individual dies leaving a surviving spouse and one or more descendants, or leaving a surviving adult interdependent partner and one or more descendants,

(a) the entirety of the intestate estate goes to the surviving spouse or adult interdependent partner, if all of the intestate’s descendants are also descendants of the surviving spouse or adult interdependent partner, or

(b) if any of the intestate’s descendants are not descendants of the surviving spouse or adult interdependent partner,

(i) the surviving spouse or adult interdependent partner is entitled to the greater of the prescribed amount or 50% of the net value of the intestate estate, and

(ii) the residue of the intestate estate shall be distributed among the intestate’s descendants in accordance with this Part.

(2) The Minister of Justice and Solicitor General may make regulations prescribing an amount for the purpose of subsection (1)(b)(i).

62 Subject to section 63, if an individual dies intestate leaving both a surviving spouse and a surviving adult interdependent partner,

(a) 1/2 of the share provided by section 61(1)(b)(i) goes to the surviving spouse and the other 1/2 of the share goes to the surviving adult interdependent partner, if the intestate left one or more descendants, or

(b) 1/2 of the intestate estate goes to the surviving spouse and the other 1/2 of the intestate estate goes to the surviving adult interdependent partner, if the intestate left no descendants.

There's more...it gets rather complicated.

It really is better to have a valid will drafted and executed properly.  Give us a call to set up a consultation.


Are there estate taxes or fees in Alberta?

No.  This is one of the Alberta advantages.  There are very reasonable Court fees when seeking a grant of probate or a grant of administration. See below.

Who is the best person to be my executor or personal representative?

Someone that you trust, and someone that is capable and ready to fulfill this challenging role. We recommend someone that is not too far away from your estate, and that is within the country that you reside.  It is not a requirement to have these criteria, but it can same time and money for your estate.

What are the responsibilities of an executor or personal representative?

These can be quite extensive, and range anywhere from finding the valid will, dealing with challenges of the will by potential beneficiaries, dealing with Land Titles Office, dealing with banks, investment companies and mortgage companies, filing taxes for the estate, distributing the estate, making court applications for probate or estate accounting, or other interim applications, providing an accounting of the estate, paying interim and final bills for the estate, paying for the funeral or memorial service, and general administration of the estate, accounts, and inventory.  Working with an experienced estate administration lawyer can help immensely in staying organized, and keeping the costs and time down for this work.

What do I need to prove for a grant of probate or a grant of administration?

Working with a lawyer, you will need to prove that all assets and liabilities have been properly accounted for the estate, and that all assets have been properly and legally distributed to the appropriate beneficiaries.  Proper notice of all essential steps is required to all interested beneficiaries and parties, and you must comply with the Surrogate Court rules exactly.

What is a Codicil?

A codicil is an amendment to a will. This can be used to modify, add to, or revoke part of a will. Specific rules must be followed for a codicil to be valid. For example, the form of codicil must match the form of the will. In other words, a holographic codicil cannot amend a formal will; as such, hand written notes on or attached to a formal will would not serve to amend a formal will. 

What are some common mistakes made by personal representatives of estates?

1. Mingling estate assets with personal assets
2. Not communicating properly and often with beneficiaries of the estate
3. Paying out beneficiaries too early - before creditors and taxes, for example
4. Taking too much time to administer the estate
5. Failing to maintain accurate estate records
6. Doing too much work before starting the probate process, and not understanding when probate is needed
7. Not seeking out professional legal advice when dealing with the administration of an estate, and wasting valuable time and money

What are the legal fees for Probate?

The Law Society of Alberta has suggested fee guidelines for Alberta probate lawyer fees for core legal services. These suggested fees consist of a base fee and an estate value fee based on a percentage of the estate. Although the guidelines are not mandatory, they are often used by probate lawyers.

The suggested fees for core legal services are:

Estates up to $150,000: $2,250 plus ½% of the value of the estate; plus disbursements and reimbursements of any costs incurred

Estates over $150,000: $2,250 plus 1% of the value of the estate; plus disbursements and reimbursements of any costs incurred

Non-Core Legal Services:
If the executor requires the probate lawyer’s assistance with more than the core legal services, the probate lawyer will charge additional fees, usually based on an hourly rate.

Your LETOURNEAU LLP lawyer will discuss the legal fees and court fees upfront with you before starting any work.  In some cases, if the complexity is determined to be lower for your estate case, the fees may be less than those outlined above.

What are the Court fees for Probate?

The government will charge a court fee when applying for a grant. These fees vary depending on the value of the estate. In Alberta, these fees are as follows:

$10,000 or less - $35
Over $10,000 but not more than $25,000 - $135
Over $25,000 but not more than $125,000 - $275
Over $125,000 but not more than $250,000 - $400
Over $250,000 - $525

These fees are minimal compared to other provinces. For example, in Saskatchewan, the court fees are $7 for every $1,000 of the estate. So, in comparison, an application for a $500,000 estate would have court fees of $3,500 in Saskatchewan, and $525 in Alberta, and for a $1,000,000 estate, the court fees would be $7,000 in Saskatchewan, and only $525 in Alberta. 

Do you offer discounts to seniors?

LETOURNEAU LLP NOW OFFERING a 10% discount to seniors and members of the Canadian military and Canadian veterans upon request.

Learn more about our Estate Planning Lawyers

You

Our estate planning lawyers have the expertise to help you through your estate administration process. We offer a free consultation and will answer your initial questions during that meeting.  Give us a call today to discuss your estate administration needs.

Links / Resources:


Wills & Personal Representatives - Centre for Public Legal Education Alberta
Making a Will  - Centre for Public Legal Education Alberta
Being a Personal Representative - Centre for Public Legal Education Alberta
Dying Without a Will & Beneficiaries - Centre for Public Legal Education Alberta

The information on this website is for information purposes only and should not be construed as legal advice.
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