Probate is a process that can impact when and how heirs can take possession of an inherited property in Alberta.
Probate is the process of validating a will. The judge ensures the will is legal, and ensures that it’s the most up-to-date version of the will. The judge then authorizes the executor to begin carrying out the decedent’s wishes. If the decedent died without a will, this is done according to intenstancy laws. The judge appoints an administrator to execute the estate in accordance with those laws.
Probate isn’t always a bad thing. Indeed, many title companies will not transfer the title of a property until the probate process is complete. Here’s what you need to know about how long that might take and what might happen during the process.
See also: How to Avoid Probate in Canada
How much does it cost to probate a will in Alberta?
Probate is quite inexpensive in Alberta. It depends on the worth of the estate, and the fees are usually paid out of the estate. Heirs do not have to write a check for probate fees. The money simply comes out of the estate before any beneficiaries are paid, according to the following schedule.
|$10,001 to $25,000||$135|
|$25,001 to $125,000||$275|
|$126,000 to $250,000||$400|
|$250,001 or more||$525|
The estate also pays the attorney and the executor reasonable fees for their services. The court has a fee schedule for both kinds of fees. These fees can be more expensive.
For core legal services, lawyers can be paid up to $2,250 plus ½% of the value of the estate for estates up to $150,000 and $2,250 plus 1% of the value of the estate for estates over $150,000. They also can receive reimbursements of their costs for performing these services, and may charge their hourly rates for “non-core” legal services.
Executors are usually paid a fee of 3% to 5% on the first $250,000, 2% to 4% on the next $250,000, and up to 3% of the balance past that.
Executors may also be reimbursed for out-of-pocket expenses. Executing a will does take time, effort, and skill. The experience of the executor may be taken into account when setting these fees. Executors are expected to keep a record of their expenses and an accounting of how they have managed the estate in case any question arises later.
What assets are subject to probate in Alberta?
Any property that the deceased owned by themselves. This can be real estate, bank accounts, coin collections, art collections, assets like vehicles or boats, or anything else the decedent owned.
There are exceptions. If the decedent owned a life insurance policy that money passes to the beneficiaries right away, so long as the death did not meet a policy exclusion. If the asset was owned by a co-owner the living co-owner gets immediate sole possession of the object. Assets that were held in a trust go straight to the beneficiary of the trust.
Some people structure their estates so that probate isn’t necessary, and so that all assets pass seamlessly to their beneficiaries upon death. When this happens, probate isn’t necessary.
What happens during probate?
First the will must be located and reviewed. The court then determines whether the will is legal, valid, and in force. All relevant information gets collected and presented to the court.
When the process is done the courts issue a “Grant of Probate.”
What happens after probate is granted in Alberta?
The executor begins to execute the decedent’s wishes. It can take six to twelve months for the executor to get through the entire process. The executor must contact financial institutions, pay debts, cut checks to beneficiaries, see to it that titles are transferred, sell property when necessary, and pay any relevant taxes.
Executors must move carefully. They are liable for any mismanagement of funds, any mistakes in how they distribute those funds, failures to pay taxes, and for other issues that might arise.
Executors do have an obligation to keep the process moving. If the executor seems to be dragging their feet you can evoke the “executor’s year.” In most cases it should take no more than a year for the executor to administer an estate after being given leave to do so. If it takes longer, the courts may call upon the executor to show cause for the delay.
Note that there are some perfectly legitimate delays that can take place, especially if those delays are built right into the will. If an heir is not to receive funds until they turn 21 and the heir is only 17 then there’s not much the executor can do other than than wait for that heir to come of age.
How long after someone dies is the will probated?
Courts get backlogged. It can take 8 to 12 months for the will to be probated. The amount of time that probate can take is one reason why some estate planners prefer to bypass probate whenever and however possible.
How long after probate can funds be distributed in Alberta?
Funds can be distributed right away, but that’s only in theory. In reality the earliest it usually takes is about three months. Some people will wait up to a year for funds or property to be distributed. Some people will wait longer than that, just because the estate is more complicated.
Need help with probate in Alberta?
The experienced wills and estates team at Merchant Law is ready to help. Our attorneys have decades of experience in estate planning, real estate law, and business law, which means they know how to handle even the most complex asset profiles.
Call (780) 474-7777 to set your first appointment today, and find out how we can help you make life easier on your loved ones after you pass.