The terms probating a Will, going to probate, filing a probate, and other similar expressions are often used but, in our experience, much of time people using those expressions do not really understand their meaning.
When someone passes and has a Will, in most situations the Will must be submitted for probate, or probated. Probate is a form of Order of the Court of Queen’s Bench of Alberta, in essence, confirming the validity of a Will and the appointment of a Personal Representative (Executor/Executrix) and, gives the Personal Representative the legal power to carry out the terms of the Will.
When is probate necessary?
Probate is absolutely necessary in situations where the deceased person had assets that were in his/her own name only and are not held jointly with another individual. In particular, owning real estate, or having bank accounts, stocks, bonds, and other investments and assets that are solely in the deceased person’s name and do not have any designated beneficiary require a Grant of Probate by the Land Titles Office or the financial institutions where the assets are held in order to transfer those assets or cash them in or sell them as the case may be to the beneficiaries named in the Will.
Probate is not required where the deceased individual’s assets are all jointly owned or have designated beneficiaries. This is the case in many situations when the first spouse passes on and title to the home that they resided in is held jointly and their bank accounts are joint and any other investments, such as, RRSPs, TFSAs, and life insurance policies have designated beneficiaries named. Probate is not required in these cases as those assets pass on to the other joint owner or the designated beneficiaries directly. In most of these situations when the second spouse passes on and there is no longer another joint owner, probate will then be required for the Will of the second spouse.
In situations where there is no Will but, there are assets that are owned by a deceased party that are not jointly owned and/or do not have any designated beneficiaries then, a process similar to an Application for Probate needs to be done which is known as an Application for Administration which appoints an Administrator as opposed to an Executor to administer the estate. Immediate family members have varying rights to become the Administrator and the priority of the various family members to do so is contained in the Intestate Succession Act of Alberta.
Please feel free to contact us by email or by telephone if you have any specific questions about Probate or Estate Law or, want any clarification of what is set out above.