Acting for an estate

When a person passes away, some of the first questions their loved ones ask is whether the person died with a Will and whether a Grant of Probate or Grant of Administration is required.

In Alberta, when a person dies without a Will, no one has authority over the deceased's estate. This is called dying intestate. The Surrogate Court grants the necessary authority and responsibility to a person, or trust company, through a Grant of Administration. The Grant of Administration is a type of court order which gives a person the powers to act on behalf of the deceased's estate. It's required when an individual dies without a Will, or without a valid Will otherwise appointing someone to act.

When a person dies with a Will, they're said to have died testate. For these types of estates, a Grant of Probate might be required. A Grant of Probate is another type of Surrogate Court order. It's the Court's official confirmation that a Will is valid and that the named executor (also called the "Personal Representative" or "PR") has the authority to act on behalf of the deceased's estate. It's like the Court's golden seal of approval of the Will.

Not every estate needs to go through the court process.

When probate may not be needed

There are situations where an individual dies with a Will, and the PR can deal with Estate assets without a grant. Usually these situations include:

• Jointly held property: All assets held in joint tenancy, such as a home or bank account, usually pass automatically to the surviving joint owner.

• Designated beneficiaries: RRSPs, RRIFs, TFSAs, or life insurance with named beneficiaries transfer directly to the named beneficiary on proof of death.

• Modest estates: Some banks will release modest account balances on an indemnity and death certificate, without demanding probate.

• Personal belongings: Household goods, vehicles, or other personal items may be transferred privately where no institution requires formal paperwork.

  • Vehicles have nuanced rules which PRs should be aware of.

When probate is usually required

Probate is often necessary when:

• The deceased owned real property (e.g. house, condo, farm land, mineral rights, etc.) as:

a. sole owner; or

b. a tenant-in-common.

Read more about "types of land ownership" on the Government's website.

• Financial institutions require the Court's confirmation before releasing funds.

• There are disputes or uncertainties about the Will or deceased's estate.

• There are minor beneficiaries or dependents of the deceased.

• There is no Will, and authority must be formally granted.

PRs obligations still apply

Even if probate is not required, the PR still has legal duties to the creditors and beneficiaries of the estate. One key duty under Alberta law is to provide a Personal Representative’s Notice to Beneficiaries (s. 10(1)(a) of the Estate Administration Act).

This obligation exists whether or not probate is obtained. In other words, skipping probate does not mean skipping transparency. Beneficiaries still need to be kept informed, and PRs must act with honesty, care, and accountability.

Practical takeaway

Not every estate requires probate, but PRs should not mistake “no probate” for “no obligations.” PRs are still legally bound to follow Alberta's Estate Administration Act and all other estate related legislation and law, and provide proper notices, account to beneficiaries, and manage the estate with care.

The Surrogate Court is involved when people die without first having written out who should administer their estate when they die.

At Cairns Law, we guide individuals through the estate planning process (i.e. getting Wills), and PRs through the estate administration routes and decisions: When probate is necessary, when it’s not, and what obligations remain either way.

Stay tuned for our next article about administering estates without probate.

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The information in this post is intended to be general only. This isn’t legal advice and reading or responding to it in any shape or form doesn’t create a solicitor-client relationship. Before taking any action involving your personal circumstances, you should consult with a lawyer or accountant to ensure is is appropriate to your situation. Links are for information only and not endorsements.