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Myths and misconceptions about probate

Home // Wills and Estates Law // Probate

Put your knowledge about probate to the test by answering the following true/false quiz on when probate is necessary in Alberta.

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Many commonly held beliefs about Probate are actually false.

True or False – Assets with a named beneficiary require probate. (False)

True or False – Jointly held assets do not require probate. (True)

True or False – Probate is required if you have an RSP that names your estate as the beneficiary. (True)

"There are so many myths and misconceptions when it comes to probate,” says Wills and Estates lawyer Andrew Geisterfer.

One of the biggest myths is that government probate fees are sky-high. This is true in other provinces, but not in Alberta, where the top probate fee is $400.

You may still prefer to avoid probate because it takes time to complete the process, but that benefit needs to be balanced against the possible negative consequences of the steps you take to avoid probate. A common strategy is to have assets jointly held with children, but this can backfire if the marital status of a child changes.

The probate process at a glance

Probate is necessary when an estate includes property and the title for that property needs to be transferred from the deceased to the beneficiaries named in his or her Will. It may also be necessary to complete the payment of any outstanding taxes or debts. This work, known legally as estate administration, is done by an Executor named in the Will or, if you die without a Will, by the Court.

Given the complexity of the Probate Process and the potentially high value of the assets being distributed, most Executors will hire a Wills and Estates lawyer to handle the probate process. Here are the basic steps that need to be completed:

  • After documenting and appraising any property owned by the deceased, the Executor or his legal representative go to Probate Court to file a "Petition” and present the Will.
  • Anyone named in the Will, plus anyone who would have been entitled to receive property if the deceased had died without a Will, must be informed of the filing.
  • All of those named can object to the filing.
  • A hearing is held in Probate Court. If there are no objections and the Court has no concerns about the filing, the Court approves the petition, appoints the Executor, also known as the Personal Representative, and orders the payment of any outstanding taxes or debts and taxes.
  • The Executor files reports with the Court to confirm the property distribution is in accordance with the Will.

The length of the probate process varies, depending on a wide variety of issues, including the complexity of the property holdings and whether or not one or more individuals choose to contest the actions of the Executor’s actions, a complication that can extend the probate process by months or even years.

Legal Scenario

First time home purchaser

"I have never bought a home before and am unsure about how to get started and what I will have to pay."

What Would Andrew Recommend?

Don’t hold back because you are afraid that you will be charged just to talk with the lawyer. Most lawyers, including me, will not charge you anything to talk over the phone or have an introductory meeting. If you call me (and I hope you do), I will give you a quick list of do’s and don’ts, based on the type of property you hope to buy. Just those few tips could end up saving you time and money. Many first time buyers think they can limit legal fees by bringing in a lawyer after the deal is done. That is a bad idea because no buyer, and especially no first-time buyer, should sign anything until it has been reviewed by a lawyer. Failing to take that step could mean that you have unknowningly accepted rights and duties that cost you much more than the lawyer’s fee.

Meet Andrew Geisterfer Edmonton Real Estate Lawyer

Andrew Geisterfer

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