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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

Real Property Report

"I am buying a house in Alberta. The seller has asked me to accept a Real Property Report even though it does not include recently added features, including a new fence, a new shed and a new deck."

What Would Andrew Recommend?

Don’t accept any unknowns. Call your lawyer and have him/her explain to you the importance of having a complete and up-to-date Real Property Report. You should also know that the buyer’s bank will generally require that the real estate buyer has full compliance with all the governing authority’s bylaws and regulations. Remember: if it is not in writing, it is not legal.

Meet Andrew Geisterfer Edmonton Real Estate Lawyer

Andrew Geisterfer

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