etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for...

24
You should NOT rely on this booklet for legal advice. It provides general information on Alberta law only. 2019 Getting a Grant of Probate or Administration in Alberta This booklet is for anyone who wants to know more about how to probate or administer a deceased person’s estate in Alberta. This booklet describes grants of probate and grants of administration and provides a step-by-step guide on applying to the court for a grant. This booklet provides information about Alberta law. This booklet gives general information only, not legal advice. If you need more detailed help or advice, see the end of this booklet for more resources.

Transcript of etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for...

Page 1: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

You should NOT rely on this booklet for legal advice. It provides general information on Alberta law only. 2019

Getting a Grant of Probate or Administration

in Alberta

This booklet is for anyone who wants to know more about how to probate or administer a deceased person’s estate in Alberta. This booklet describes grants of probate and grants of administration and provides a step-by-step guide on applying to the court for a grant.

This booklet provides information about Alberta law. This booklet gives general information only, not legal advice. If you need more detailed help or advice, see the end of this booklet for more resources.

Page 2: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

#800, 10050 112 Street Edmonton, Alberta T5K 2J1

Phone 780.451.8764 Fax 780.451.2341 Email [email protected] Web www.cplea.ca

DISCLAIMER

The contents of this booklet are provided as general information only. It is not legal advice. If you have a legal problem, you should consult a lawyer.

The information contained in this booklet was correct at the time it was produced. Be aware that there may have been subsequent changes which make the information outdated at the time you are reading it. The Legal Resource Centre of Alberta Ltd. will not be responsible for any loss arising from reliance on or action taken (or not taken) as a result of this information.

ACKNOWLEDGEMENT

We would like to thank the Alberta Law Foundation and the Department of Justice Canada for providing operational funding, which makes publications like this possible.

© Legal Resource Centre of Alberta Ltd., Edmonton, Alberta Operating as: Centre for Public Legal Education Alberta Last Revised 2019

The Legal Resource Centre of Alberta Ltd., operating as the Centre for Public Legal Education Alberta, is a non-profit organization whose mission is to help people understand the law as it affects their everyday lives. We develop plain language booklets, presentations, and other learning materials to help people recognize and respond to their legal rights and responsibilities. We have a variety of programs, and provide legal information and referrals on many legal topics. For more information, please visit www.cplea.ca.

www.cplea.ca

Photo Credit: ID 72930551 © Frizzantine | Dreamstime.com

Page 3: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

Is Probate Necessary? 4

Grant of Probate 6

Grant of Administration with Will Annexed 8

Grant of Administration 10

Grant of Resealed Probate/Administration 12

Steps to Applying for a Grant 13

Resources 21

Table of contents

3

Page 4: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

4

Is Probate Necessary?Your family member or friend has died and you want to know what happens next. The following chart can help you figure out what process should be followed.

If a deceased was First Nations and ordinarily lived on-reserve, the law is different for settling estates. The Indian Act and the Indian Estates Regulations apply. For more information, contact

BearPaw Education 780.428.0187 or www.bearpaweducation.ca or Indigenous and Northern Affairs Canada http://bit.ly/2J7Dlyo

Was the deceased a resident of Alberta when they died?

Did the deceased own property in Alberta when they died?

A grant of resealed probate/administration may be

necessary. See page 12 for more information.

Alberta’s laws do not apply to the deceased’s estate. Contact a lawyer

for more information.

Did the deceased leave a Will?

Is the Will valid?(See the box called “Is the Will

valid?” on the next page to determine if the Will is valid.)

Does the Will name a Personal Representative?

Is the person named as the Personal Representative willing and able to

act on behalf of the estate?

Does the Will deal with all of the deceased’d estate?

(Some property is not included in the deceased’s estate. See the box called “What is an estate?” on the next page for more information.)

A grant of probate may be necessary. See page 6 for more

information.

A grant of administration may be necessary. See page 10 for more information.

A grant of administration with will annexed may be necessary. See page 8 for more information.

An application can be made to the court to validate the Will. Contact a lawyer for more

information.

Otherwise, a grant of administration may be necessary. See page 10 for more information.

A grant of administration with will annexed may be necessary. See

page 8 for more information.

Are alternate Personal Representatives named in the Will, and are those people willing and able to

act on behalf of the estate?

A grant of administration with will annexed may be necessary for the estate property not dealt

with in the Will. See page 8 for more information.

A grant of probate may be necessary for the estate property dealt with in the Will. See page 6

for more information.

NOYES

YES

YES

YES

YES

NO

NO

NO

YES

NO

NO

NO

YES

YES

NO

Page 5: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

5

Is the Will valid?To be valid, the Will must:

1. be in writing; and

2. be signed by the testator; and

3. meet one of the following requirements:

o be in writing and signed by the testator and two witnesses, all in the presence of each other (this is called a “formal Will”); or

o be written in the testator’s own handwriting and not witnessed (this is called a “holograph Will”); or

o be written by the testator while on active service with the Canadian Forces (naval, land or air force) and not witnessed (this is called a “military Will”); or

o be ordered by the court to be a valid Will.

If these three requirements are not met, the Will is not valid.

What is an estate?A person’s estate is the property they own at the time of their death, including land and possessions.

The following property does not form part of the deceased’s estate and does not need probate or administration:

• Assets held in joint tenancy are transferred to the surviving owner by completing the necessary forms and providing proof of death (usually a death certificate).

If land is owned in joint tenancy, then the surviving owner must complete and file a “Statutory Declaration re Proof of Death” with Alberta’s Land Titles Office. If a bank account or other property is owned in joint tenancy, the surviving owner should check with the bank or registry to see what documents are needed to transfer the title into the name of the surviving owner.

• Assets with a named beneficiary, such as RRSPs or insurance policies, are transferred directly to the named beneficiary once you give the plan administrator or insurance company a copy of the death certificate.

If all of the deceased’s property is owned in joint tenancy or has named beneficiaries, then getting a grant of probate or grant of administration will not be necessary.

Page 6: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

6

A Personal Representative is the person named in a Will who is responsible for managing the testator’s estate and for carrying out the instructions in the Will.

ROLE OF THE PERSONAL REPRESENTATIVE

• named in a valid Will made by the deceased;

• responsible for dealing with the deceased’s estate;

• can start acting right away after the deceased dies;

• may need to apply for a grant of probate depending on the assets in the estate;

• must follow the instructions set out in the Will;

• owes a fiduciary duty to the estate and its beneficiaries; and

• must act according to the Estate Administration Act and the Trustee Act.A fiduciary duty is a

legal obligation of one person to act in the best interests of another person.

The Personal Representative can apply to the court for a grant of probate. The process of applying for the grant and dealing with the estate under the grant is called ‘probating the estate’.

The laws use the term personal representative to refer to an executor, personal representative, trustee or

administrator. In this booklet, we use the term Personal Representative only to refer only to someone named in a

Will as the Personal Representative.

Grant of ProbateA grant of probate is a court order that confirms:

• the Will is valid; and

• the appointment of the Personal Representative named in the Will.

Page 7: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

7

A Grant of Probate is Not Always NecessaryA Personal Representative named in a valid Will has authority to deal with the estate without a grant of probate. It is not always necessary for a Personal Representative to apply for a grant of probate.

A grant of probate may be necessary if:

• the deceased owned real estate on their own or as a tenant in common;

• the financial institution requires a grant of probate to release assets to the Personal Representative;

• the estate is complex (lots of assets; lots of beneficiaries; beneficiaries are companies, trusts, or other organizations); or

• someone is challenging or might challenge the validity of the Will.

For steps on how to apply for a grant of probate, see page 13.

For more information on Wills, see CPLEA’s Making a Will booklet.

For more information on the duties and responsibilities of a Personal Representative, see CPLEA’s Being a Personal Representative booklet.

These publications are available at www.cplea.ca/publications

Page 8: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

8

A grant of administration with will annexed is a court order that appoints an Administrator to manage the estate according to the Will.

This type of grant is necessary where there is a valid Will but the Will:

• does not name a Personal Representative; or

• names a Personal Representative but the Personal Representative is not willing or able to act and there is no other Personal Representative that is named or willing or able to act; or

• does not deal with all of the deceased’s estate. (In this case, a grant of probate is needed for the estate property dealt with in the Will and a grant of administration with will annexed is needed for the estate property that is not dealt with in the Will.)

It is necessary to apply for a grant of administration with will annexed in these situations unless all of the property owned by the deceased does not form part of their estate. No one has authority to deal with the deceased’s estate not covered by the Will until a grant of administration with will annexed has been issued by the court.

ROLE OF THE ADMINISTRATOR• cannot act unless they have the court’s permission to act (through a grant);

• must apply for a grant of administration with will annexed or a grant of administration;

• must be the person with the highest priority on the list of people eligible to apply under the Estate Administration Act;

• responsible for dealing with the deceased’s estate;

• must distribute the estate according to the Will and the rules set out in the Wills and Succession Act;

• owes a fiduciary duty to the estate and its beneficiaries; and

• must act according to the Estate Administration Act and the Trustee Act.

Grant of Administration with Will Annexed

Page 9: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

9

Who is the Administrator?Alberta’s Estate Administration Act sets out who can be the Administrator and prepare the application for the grant of administration with will annexed. The Act sets out and prioritizes a list of people who can apply. The person with the highest priority can apply to be the Administrator. This person can also nominate someone else to be the Administrator if they do not want to act.

The list of people, from highest to lowest priority, is as follows:

• a Personal Representative named in the Will, unless that person is incapable of acting or unwilling to act;

• a Personal Representative appointed by the person expressly authorized in the Will to appoint a Personal Representative;

• a residuary beneficiary named in the Will;

If there are two or more people with the same priority, preference goes to the person who is a resident of Alberta. Between one and three people can be appointed as the Administrator.

For steps on how to apply for a grant of administration with will annexed, see page 13.

• a life tenant of the residue in the Will;

• a beneficiary under an intestacy if the residue is not completely disposed of in the Will;

• a beneficiary receiving a specific gift in the Will;

• a contingent beneficiary of the residue in the Will;

• a contingent beneficiary of a specific gift in the Will;

• the Alberta government.

Intestacy refers to when someone dies without a Will. The

deceased is said to have died ‘intestate.’

GiftsThere are two types of gifts:

1. Specific gifts are property that the Will says are to be given to a named person. For example, a Will might state that the deceased’s art collection shall be given to a specific niece.

2. Residuary gifts are the rest of the assets in the estate after the specific gifts have been given. For example, a Will might say that the residue of the estate shall be divided equally among the deceased’s grandchildren. If the residue of the Will is worth $100,000 and there are 5 grandchildren, then each grandchild gets $20,000. A person who receives a residuary gift is called a residuary beneficiary.

Page 10: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

10

Grant of Administration

The beneficiaries of a person who died intestate (without a Will) are set out in Alberta’s Wills and Succession Act.

For more information, see CPLEA’s handout called

Beneficiaries: When someone dies without a Will in Alberta

www.cplea.ca/publications

ROLE OF THE ADMINISTRATOR• cannot act until the court gives them permission to act by issuing the grant;

• must apply for a grant of administration with will annexed or a grant of administration;

• must be the person with the highest priority on the list of people eligible to apply under the Estate Administration Act (unless the court decides differently);

• responsible for dealing with the deceased’s estate;

• must distribute the estate according to the rules set out in the Wills and Succession Act;

• owes a fiduciary duty to the estate and its beneficiaries; and

• must act according to the Estate Administration Act and the Trustee Act.

A grant of administration is a court order that:

• appoints an Administrator; and

• confirms the estate can be distributed to the people who inherit the estate of an intestate person.

This type of grant is necessary where:

• there is no Will; or

• the Will is not valid because it does not meet the legal requirements for a Will in Alberta and the court has not declared the Will to be valid.

It is necessary to apply for a grant of administration in these situations unless all of the property owned by the deceased does not form part of their estate. No one has authority to deal with the deceased’s estate until a grant of administration has been issued by the court.

Page 11: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

11

Who is the Administrator?Alberta’s Estate Administration Act sets out who can be the Administrator and prepare the application for the grant of administration. The Act sets out and prioritizes a list of people who can apply. The person with the highest priority will usually apply and be appointed as the Administrator. This person can also nominate someone else to be the Administrator if they do not want to act.

The list of people, from highest to lowest priority, is as follows:

• the surviving spouse or surviving adult interdependent partner of the deceased;

• a child of the deceased;

• a grandchild of the deceased;

• a descendant of the deceased other than a child or grandchild (i.e. a great-grandchild);

• a parent of the deceased;

• a brother or sister of the deceased;

• a child of the deceased’s brother or sister if the child is also a beneficiary of the estate;

• the next of kin of the deceased who are also beneficiaries of the estate;

• a person who has an interest in the estate because of a relationship with the deceased;

• a claimant against the estate of the deceased;

• the Alberta government.

An adult interdependent partner is the person with whom you are in an adult interdependent relationship.

An adult interdependent relationship is a term that is unique to Alberta for relationships outside of marriage and governed by Alberta’s Adult Interdependent Relationships Act.

For more information on adult interdependent relationships, see CPLEA’s Living Together booklet at www.cplea.ca/publications

A descendant is a person who is related to you and who lives after you, such as a child or grandchild.

Page 12: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

12

Between one and three people can be appointed as the Administrator.

• If there are two or more people with the same priority, preference goes to the person who is a resident of Alberta.

• If there is equal priority between spouses or adult interdependent partners, preference goes to the preson who lived with the deceased right before or most recently before the deceased died.

• If there is equal priority between persons, you can all agree among yourselves who will act, you can apply together (up to three of you), or you can ask the court to make a decision.

• The court has the power to appoint as Administrator a person who is not the highest on the priority list.

For example, if a person dies without a Will and leaves behind a wife, a child and a sibling, the wife has first priority to apply for a grant of administration. If the wife does not want to be the Administrator, the wife can nominate someone else to be the Administrator. That person will become the Administrator even before the deceased’s child or sibling.

You should consult a lawyer if you are not sure if you are the Administrator or if you are not the highest person on the priority list but want to be appointed Administrator.

For steps on how to apply for a grant of administration, see page 13.

Grant of Resealed Probate/Administration

If the deceased did not live in Alberta but owned property in Alberta, you may have to apply for a grant in the place where the deceased lived and then apply for a grant of resealed probate/administration in Alberta. A grant of resealed probate/administration allows you to only deal with the property in Alberta. For example, a grant of resealed probate/administration might be necessary where the deceased lived in another province in Canada but owned land in Alberta.

For more information on or help with these types of grants, contact a lawyer.

Page 13: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

13

Steps to Applying for a GrantThere are many laws that apply to dealing with an estate. The main ones are:

• Estate Administration Act

• Wills and Succession Act

• Trustee Act

• Surrogate Rules of Court

Depending on the situation, many other laws may apply such as laws about families and support, real estate, insurance, and taxes.

This section outlines the steps the Personal Representative or Administrator should take when applying for a grant of probate, a grant of administration with will annexed, or a grant of administration.

In this section, we use the term ‘grant’ to mean a grant of probate, a grant of administration with will annexed, or a grant of administration. We will note

where the process is different for a specific type of grant.

Step 1: Get copies of the application forms.There are specific forms that are used to apply for a grant. These forms are called the “Surrogate Forms.” These forms must be completed as is. You cannot change them in any way by adding information or deleting information that is requested.

The forms can be purchased from the Queen’s Printer Bookstore in Edmonton.

Queen’s Printer Bookstore

780.427.4952 (call from anywhere in Alberta by dialing 310-000 first)

Or go to www.qp.alberta.ca and search for “Surrogate Rules Package”

The law states that a Personal Representative or Administrator must distribute the estate as soon as practicable. While it may take some time to prepare the application, you cannot delay the process. If you do, then the beneficiaries of the estate may take you to court.

Page 14: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

14

As an Administrator, how can I gather this information if I do not yet have authority from the court to act?

You must use your best efforts to get as much information as possible. If you are the person with the highest priority to be Administrator, people and institutions will usually cooperate with you. If you cannot determine the value of the assets and debts before applying for the grant, you can use estimates or write “unknown”. Once you are appointed Administrator, you should seek out better information and amend the application filed with the court.

Step 2: Gather information about the deceased, the beneficiaries, and the estate.You will need lots of information to complete the application so you should start collecting this information right away. This information includes:

• the original version of the Will (if applying for a grant of probate or a grant of administration with will annexed);

• a list of all the assets and debts of the deceased and the value of these assets and debts, including:

o legal land descriptions for all land;

o account numbers, institution and location where the account is held, interest rates, and interest that has accrued since death for all bank accounts, investments, credit cards, loans, etc.;

o descriptions of valuable personal belongings, such as art, vehicles, or collectibles;

• names, birth dates, and addresses for all beneficiaries;

• the date and place where the deceased was born; and

• the date and place where the deceased died.

It might take time, and some serious investigating, to get all this information together.

Page 15: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

15

Step 3: Complete the Surrogate Forms.The next step is to fill in the forms. There are about 80 different forms, and you may not need all of them. The forms you need to fill out depend on your unique situation.

Remember, only property that forms part of the estate gets listed in the grant application. Property that is owned in joint tenancy or that has named

beneficiaries does not form part of the estate and so is not listed in Form NC 7.

Where to go for help completing the forms?• Visit a legal clinic in the province (if you are eligible).

• Visit Resolution and Court Administration Services (RCAS).

• Retain a lawyer. If you do not know a lawyer, contact the Law Society of Alberta’s Lawyer Referral Service 1.800.661.1095

The Surrogate Forms include four different classes of forms:• NC – for non-contentious matters, such as applying for a grant;

• C – for contentious matters, such as applications to the court to challenge the validity of the Will;

• ACC – for accounting reports;

• NGA – notices to the beneficiaries, family members, spouse, attorney, trustee, Public Trustee or guardian (where there is no grant).

A limited scope retainer is an arrangement when a lawyer provides legal services for part of a legal matter, but not all of it. You and the lawyer will agree ahead of time which parts they will do. For example, the lawyer could prepare the application but you would do everything else for the estate.

For more information on retainers, visit https://www.law-faqs.org/alberta-faqs/legal-services/retainer/ or visit The Alberta Limited Legal Services Project website at http://albertalegalservices.com/.

Page 16: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

16

Below is a list of the forms commonly used for the different grants:

This is not a complete list of the forms. Consult with a lawyer for more information.

Form No.

Form Grant of Probate

Grant of Administration with Will Annexed

Grant of Administration

NC 1 Application by the personal representative(s)* for a grant

NC 2 Affidavit by the personal representative(s)* on application for a grant

NC 3 Schedule 1: Deceased

NC 4 Schedule 2: Will

NC 5 Schedule 3: Personal representative(s)*

NC 6 Schedule 4: Beneficiaries

NC 6.1 Acknowledgement of Trustee(s)

NC 7 Schedule 5: Inventory of property and debts

NC 8 Affidavit of witness to a will

Use if witness to Will is available

NC 9 Affidavit of handwriting of deceased

Use if witness to Will is not available or Will is handwritten and not witnessed

NC 19 Notice to beneficiaries (residuary)

NC 20 Notice to beneficiary (non-residuary)

NC 20.1 Notice of void gift

Page 17: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

17

NC 21 Notice to beneficiaries (intestacy)

NC 22 Notice to spouse of deceased (Matrimonial Property Act/Family Property Act)

NC 23 Notice to spouse/adult interdependent partner of deceased (Family Maintenance and Support)

NC 24 Notice to dependent child or minor grandchild or great-grandchild of the deceased (Family Maintenance and Support)

NC 24.1 Notice to the Public Trustee

NC 25 Affidavit about missing or unknown beneficiaries

NC 27 Affidavit of Service Complete as proof of service of the following forms: NC 19, NC 20, NC 20.1, NC 21, NC 22, NC 23, NC 24, NC 24.1

NC 34 Notice to Creditors and Claimants

NC 34.1 Statutory Declaration of Publication

* The term personal representative on these forms refers to a Personal Representative or an Administrator.

Page 18: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

18

Step 4: Publish a Notice to Claimants in a newspaper.A Notice to Claimants is an ad in a newspaper that notifies claimants that the deceased has died. A claimant is anyone who might have a claim against the estate, such as someone who is owed money by the deceased. A claimant has one month from the time the Notice to Claimants is last published to contact you about their claim.

You are not required to publish a Notice to Claimants but it is a good idea to do so to protect yourself from being personally liable to a claimant. It is also a good idea to publish a notice if you think people have claims against the estate. If you publish a Notice to Claimants, then you must use the process set out in Rules 38 to 43 of the Surrogate Rules of Court.

To publish a Notice to Claimants, contact a newspaper that is published or circulated where the deceased lived or where they had property (if they lived outside Alberta). Form NC 34 of the Surrogate Forms is the template used for the Notice to Claimants. The Notice to Claimants must be published:

• at least once if the estate has a gross value of $100,000 or less; or

• at least twice with 5 days or more between the publications if the estate has a gross value of more than $100,000.

Keep copies of the newspaper containing the notice(s). You can ask the newspaper to send you copies. Complete Form NC 34.1 as proof that the notice was published and attach copies of the ad(s) as an exhibit. Some newspapers will complete Form NC34.1 for you. Check with the newspaper you use about their practice.

The completed Form NC 34.1 can be included with your application. You should wait to file your application until the deadline has passed for claimants to notify you.

Step 5: Serve Notices required by law.Your application for a grant will likely contain one or more Notices. A Notice is a formal notice to a beneficiary or other person about the application. The Notices are Forms NC 19 through NC 24.1.

If applicable, the following people get Notices:

• all beneficiaries;

• current and former spouses;

• current and former adult interdependent partners;

• guardians of dependent children or minor grandchildren or great-grandchildren; and

• the Public Trustee.

Page 19: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

19

All of the Notices must be delivered to the people they are addressed to before you can file your application. Some people might get more than one Notice.

Once the Notices are complete and signed, make a photocopy of them. The original notice will be given to the recipient and you will keep the photocopy. Carefully read what each Notice says to see what other documents you must send along with the Notice. (For some Notices, you must include a photocopy of the completed application for the grant.)

Notices can be delivered in person or can be mailed by prepaid registered mail. For each Notice, you need to complete an Affidavit of Service (Form NC 27) confirming that the Notice was delivered. Affidavits of Service must be sworn or affirmed before a Commissioner of Oaths (if you are in Alberta) or Notary Public (if you are outside Alberta). The photocopy of the Notice must be attached to the Affidavit of Service, along with any proof of service, such as a delivery certificate if the Notice was mailed.

Step 6: Review the application.Before you file the application, review it to make sure it is complete. You should also make a copy for yourself.

It is very important to complete the forms correctly. You must provide all information that is requested. If the information requested does not apply, then you must write “N/A” or “Not Applicable” instead of leaving the line blank. If there are mistakes or if the application is incomplete, the court will return the forms to you. This will delay getting the grant.

Step 7: File the application.The application must be filed with the Surrogate section of the Court of Queen’s Bench (sometimes called “Surrogate Court”). It should be filed at the courthouse that is:

• closest by road to the place where the deceased lived before their death; or

• if the deceased lived outside Alberta, closest by road to the deceased’s property in Alberta.

For a list of Court of Queen’s Bench locations in Alberta, visit:

https://albertacourts.ca/qb/about/locations-and-sittings

Page 20: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

20

For example, if the deceased lived in Edmonton, the application would be filed with the Surrogate Court in Edmonton. If the deceased lived in Rocky Mountain House, the application should be filed with the Surrogate Court in Red Deer.

A grant application is referred to as a desk application, which means that the judge reviews the documents without you having to speak to the judge in court. If there is an issue (a “contentious matter”), such as someone challenging the will, then you will have to make an application in front of a judge in court. Contact a lawyer for more information if there is a contentious matter.

Step 8: Wait for the court to get back to you.It can take several weeks, or sometimes months, for the court to review the application and issue a grant. When the grant is ready, the court will call you. They will let you know what the court fees are. You must pay the court fees before the court will issue you the grant.

Court fees depend on the value of the estate – the larger the estate, the higher the fee. The value of the estate is calculated using Form NC 7. Court fees in 2019 were:

Estate Value Court Fees$10,000 or under $35.00Over $10,000 but not more than $25,000 $135.00Over $25,000 but not more than $125,000 $275.00Over $125,000 but not more than $250,000 $400.00Over $250,000 $525.00

You will get one original of the grant. You should keep the original safe and never give it away.

You can also ask the court for certified copies. If you are transferring land or dealing with other agencies, sometimes they will want a certified copy of the grant. You can ask the court for one or two certified copies of the grant when they call you to let you know it is ready. If you need certified copies at a later date, you can ask the court then. The court will charge you for each certified copy you request.

Step 9: Carry out your role as Administrator or Personal Representative.Once you have the grant, you are authorized to deal with the estate.

Page 21: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

21

Resources Alberta Queen’s PrinterFor free electronic and print copies of Acts or Regulations.

www.qp.alberta.ca

Alberta Courtswww.albertacourts.ca

Resolution and Court Administration Services (RCAS)Resolution and court support services across Alberta.

1.855.738.4747

https://www.alberta.ca/rcas.aspx

Law Society of Alberta Lawyer Referral ServiceProvides names of three lawyers. Each lawyer to provide half-hour consultation free of charge.

Toll-free: 1.800.661.1095

https://www.lawsociety.ab.ca/public/lawyer-referral/

Page 22: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

22

Notes

Page 23: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

Getting a Grant of Probate or AdministrationCentre for Public Legal Education Alberta www.cplea.ca

23

Notes

Page 24: etting a rant of Probate or Administration · etting a rant of Probate or Administration Centre for Public egal Education Alberta 7 A Grant of Probate is Not Always Necessary A Personal

www.cplea.ca

Phone 780.451.8764 Fax 780.451.2341 Email [email protected] Web www.cplea.ca

You should NOT rely on this booklet for legal advice. It provides general information on Alberta law only. 2019

This booklet is one of many publications produced by the Centre for Public Legal Education Alberta. All publications can be viewed and downloaded for free by visiting www.cplea.ca/publications or you may order pre-printed publications to be sent to you by visiting www.cplea.ca/store

Other publications related to this topic that may interest you include:

• MakingaWill

• MakingaPersonalDirective

• MakinganEnduringPowerofAttorney

• BeingaPersonalRepresentative

• BeinganAttorneyUnderanEnduringPowerofAttorney

• BeinganAgent

• GeneralPowersofAttorney

• Adult Guardianship and Trusteeship Act

SpecialthankstotheAlbertaLawFoundationandtheDepartmentofJusticeCanadaforprovidingoperationalfunding,whichmakespublicationslikethispossible.

Getting a Grant of Probate or Administration

in Alberta