What is Probate?
April 29, 2025 | Paralegal
What exactly is probate, and why is it necessary?
In Alberta, probate, formally known as applying for a Grant of Probate from the Surrogate Court, is the legal process of validating a deceased person’s will and confirming the executor’s authority to administer the estate.
Here’s a breakdown of what it entails and why it’s often necessary:
What Exactly is Probate?
Probate is essentially the court’s way of:
- Confirming the validity of the deceased’s will: The court ensures that the submitted document is indeed the last valid will of the deceased, that is the properly signed and witnessed (if required), and that the deceased had the mental capacity to make it.
- Officially appointing the executor: If a will names an executor, the court grants them the legal authority to act on behalf of the estate. This is formalized through the Grant of Probate.
- Providing legal authority to administer the estate: The Grant of Probate empowers the executor to manage the deceased’s assets, pay debts and taxes, and ultimately distribute the remaining assets to the beneficiaries as outline in the will.
- Creating a public record of the will: Once probated, the will becomes a public document.
Why is Probate Necessary?
Probate is often required for several important reasons:
- To provide legal certainty: It offers assurance to third parties (like banks, land title offices, and other financial institutions) that the executor has the legitimate authority to deal with the deceased’s assets. Without this court order, these institutions may be hesitant to release or transfer assets. They need protection against potential liability if they were to release assets to someone without proper legal standing.
- To protect beneficiaries: Probate helps ensure that the deceased’s wishes, as expressed in their valid will, are followed and that the assets are distributed correctly to the rightful beneficiaries.
- To settle debts and taxes: The probate process provides a framework for identifying and paying any outstanding debts, taxes, and other liabilities of the deceased before the remaining assets are distributed.
- To transfer ownership of assets: For certain assets, particularly real estate and substantial financial holdings held solely in the deceased’s name, a Grant of Probate is usually necessary to legally transfer ownership to the beneficiaries or to allow the executor to sell them. The Land Titles Office, for instance, typically requires a certified copy of the Grant of Probate to register any transfer of land.
- To address situations without a will: If a person dies without a valid will (intestate), a similar court process called administration is required. In this case, the court appoints an administrator (usually a close relative) who is then authorized to manage and distribute the estate according to Alberta’s intestacy laws.
When Might Probate Not Be Necessary?
There are certain situations where probate might not be required:
- Small estates: Alberta has provisions for small estates (currently, estates valued at $50,000 or less) where a simplified process may be available. However, even for small estates, some institutions might still require a Grant of Probate depending on assets involved.
- Jointly owned assets with the right of survivorship: If assets like bank accounts or real estate are held jointly with another person and have the “right of survivorship,” the surviving owner automatically inherits the deceased’s share without going through probate.
- Assets with designated beneficiaries: Assets like life insurance policies, RRSPs, and TFSAs with named beneficiaries usually pass directly to those beneficiaries outside of the estate and probate process.
- Assets held in trust: Assets held in a valid trust are typically distributed according to the terms of the trust agreement and do not form part of the probate estate.
Probate is a crucial legal process that provides a structured and legally recognized way to deal with a deceased person’s estate, ensuring the orderly transfer of assets, the settlement of obligations, and the protection of beneficiaries’ interests. While it can sometimes be avoided, it is often a necessary step, especially when significant assets are involved or when dealing with financial institutions and land titles.
