Probate Law in Alberta: Detailed Overview
Probate is the legal process that proves a will, confirms the authority of the personal representative (commonly known in other provinces as an executor) and oversees the distribution of a deceased person’s estate. In Alberta the law uses “personal representative” rather than executor because it captures executors, administrators and trustees. Probate matters are heard in the Surrogate Court, a division of the Court of King’s Bench.
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What Is Probate in Alberta?
Probate is typically required when the deceased owned real property or when financial institutions insist on proof of the personal representative’s authority. The court reviews the will, verifies that it was validly executed, and issues a grant of probate that authorizes the personal representative to administer the estate. When there is no will, the personal representative applies for a grant of administration, and the estate is distributed according to intestacy rules under the Wills and Succession Act. While the probate process may sound daunting, having a clear understanding of the law helps minimize delays and costs.
Key Legislation: Wills and Succession Act, Estate Administration Act & Surrogate Rules
Three primary statutes guide probate in Alberta:
Wills and Succession Act (WSA). This act consolidates earlier statutes and sets out how and to whom property transfers after death. It is built on the principles that a person may transfer property on death, that family inherits when there are no instructions, and that transfers must satisfy legal obligations and family support. The WSA modernized many rules; for example, marriage no longer revokes a will and courts may validate or correct an imperfect will.
Estate Administration Act (EAA). Coming into force in 2015, the EAA outlines what personal representatives must do when settling an estate. It uses plain language to explain duties, tasks and notice requirements. It emphasizes that personal representatives must act honestly and in good faith, identify assets, pay debts and distribute property quickly.
Surrogate Rules. These procedural rules govern applications for grants, notices, accounting and court hearings. They are divided into five parts covering non‑contentious matters, contentious proceedings, accounting, trustee applications and transitional matter. Even if a personal representative does not apply for probate, they still must send registered notices to beneficiaries and spouses.
Responsibilities of a Personal Representative
Being named as a personal representative carries significant responsibilities. The law recognizes that while a person is free to give property by will, those instructions are subject to legal and family obligations. Under the EAA, personal representatives must:
Act honestly, in good faith and with the care, skill and diligence that a reasonable person would exercise.
Locate and secure all assets and liabilities of the estate.
Apply for the appropriate grant (probate or administration) if required.
Pay funeral costs, debts, taxes and legal obligations before distributing the estate.
Distribute the remaining property according to the will or intestacy rules, keeping beneficiaries informed.
Failing to fulfil these duties can lead to court applications by beneficiaries. A personal representative can hire professionals to help, but they remain ultimately responsible for decisions and record‑keeping
Step‑by‑Step Probate Checklist
To help Calgary residents navigate probate, here is a simplified checklist. Always seek professional advice for complex estates.
Locate the will and confirm its validity. Gather original documents such as the will, codicils and any memoranda.
Identify the personal representative(s). Verify who is appointed and whether they are willing to act. If there is no will, determine who has priority under the WSA.
Inventory assets and liabilities. List real property, bank accounts, investments, personal property and debts. Obtain valuations where necessary.
Apply for a grant. Prepare the necessary forms (explained in more detail on our probate forms page) and file them with the Surrogate Court. Pay the probate fee.
Send required notices. Under the Surrogate Rules, notify beneficiaries, family members and the Public Trustee by registered mail. Publish a notice to creditors if the estate is large.
Collect and manage the estate. Transfer assets into the estate account, sell or manage property, and keep detailed records.
Pay debts and taxes. Use estate funds to pay funeral expenses, outstanding debts and taxes. File terminal tax returns.
Distribute the estate. After debts and claims are satisfied, distribute property according to the will or intestacy laws. Obtain releases from beneficiaries.
Provide an accounting. Prepare a final report showing income, expenses and distributions, and have it approved by the court or beneficiaries as required.
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Disclaimer: This guide provides general information about estate planning in Alberta and should not be considered legal advice. Every situation is unique, and you should consult with a qualified estate planning lawyer to discuss your specific circumstances. Laws and regulations can change, so ensure you’re working with current information when making estate planning decisions.
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Frequently Asked Questions: Probate in Alberta
What is the purpose of probate?
Probate proves the validity of a will, confirms the authority of the personal representative and protects third parties (such as banks) when they transfer assets. Without probate, institutions may refuse to release funds.
Do all estates in Alberta require probate?
Not necessarily. Small estates or assets held jointly may not need probate. However, if the deceased owned real property or significant financial assets, probate is often required. Consult a legal professional to assess your circumstances.
Can I avoid probate by naming beneficiaries?
Certain assets, such as life insurance or RRSPs with designated beneficiaries, pass outside the estate. Proper planning can reduce probate costs. Speak with an estate planner to explore your options.
How long does probate take in Alberta?
The timeline varies depending on the estate’s complexity and whether there are disputes. Most straightforward estates are completed within six to twelve months. Complex estates or challenges can take longer.
Is this information legal advice?
No. This guide provides general information about probate in Alberta and is not a substitute for legal advice. Always consult a qualified professional about your specific situation.
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