Perhaps you’ve recently found out you’re named as an Executor in someone’s Will. Maybe you’re doing some estate planning of your own, looking for a Calgary Probate Lawyer, or simply wish to learn more about Alberta Estate Law. In any case, we hope you’ll find our ‘Alberta Probate Guide’ insightful.
The below is an introduction to topics and terminology common to Alberta Probate and Estate Administration Law. The content and the articles linked here are designed as a bird’s eye summary only and are not to be considered legal advice in any respect. We always recommend seeking the advice of a lawyer before undertaking any Estate Administration tasks. The below is based on the law current at the time of publishing, and estate laws may change and be revised over time.
What’s What?
- Administration: Administration is the process by which an Estate Administrator is appointed. If a deceased passes away without leaving a Will, the Estate Administration Act determines who is entitled to act as an Estate’s Administrator. The individual entitled by the legislation to act as the Estate’s Administrator must apply for a Grant of Administration before administering the deceased’s Estate—this application process is known as Administration or the Administration process.
- Estate: A deceased’s Estate is the sum of all the deceased’s assets upon their passing, exclusive of any assets which are subject to a right of survivorship, and any assets which have a designated beneficiary. For example, if an individual passes away leaving $10,000.00 in a savings account, a home held in joint tenancy with his/her spouse, and a TFSA naming his/her child as designated beneficiary, the Estate would be comprised of only the $10,000.00 and any personal effects or valuables owned by the deceased. The real estate would fall outside of the Estate and transfer to the deceased’s spouse, while the value of the TFSA would be payable directly to the child designated as beneficiary to the TFSA and would also fall outside of the Estate.
- Grant of Administration: When an individual dies without leaving a Will, an application must be made for a Grant of Administration. This Grant appoints an Estate Administrator to carry out the responsibilities of administering the deceased’s Estate pursuant to rules and guidelines set forth in the Estate Administration Act (Alberta).
- Grant of Administration with Will Annexed: A Grant of Administration with Will Annexed is required in circumstances where the deceased left a Will, but the Executor(s) appointed in the Will are deceased also or are unable or unwilling to act. This type of Grant is also required where the Will doesn’t adequately address the distribution of the deceased’s property. This Grant either appoints an Estate Administrator and authorizes them to distribute the Estate according to the deceased’s Will, or, it authorizes the Executor named in the deceased’s Will to distribute the Estate property according to the priority sequence stipulated in the Wills and Succession Act.
- Grant of Probate: The Court issues a Grant of Probate in cases where the deceased left a valid Will—a Grant of Probate is the Court’s confirmation of the validity of the deceased’s last Will, and the Court’s authorization to the Executor to begin distributing the Estate.
- Probate: Probate is the process by which a Will is proved valid. The deceased’s last Will is submitted to the Court along with a detailed application package signed by the Estate’s Executor. The Court then reviews the Probate application and determines whether it intends to issue a Grant of Probate based on the validity of the deceased’s Will.
- Testacy/Intestacy: When an individual dies leaving a valid Will, Testacy results, and a Grant of Probate is required. When an individual dies without leaving a valid Will, an Intestacy arises, requiring instead a Grant of Administration.
- Testamentary Trust: A Testamentary Trust is a trust created by a Will—the trust crystallizes, or is perfected, upon the death of the Will-maker, who is the grantor of the Testamentary Trust.
- Testate/Intestate: Someone who dies leaving a valid Will is said to have died Testate, while someone who dies without leaving a valid Will is said to have died Intestate.
- Trust: A Trust is a legal instrument that creates a beneficial/equitable right to certain property, land, or monies that are the subject property of the Trust. The legal ownership of the property, however, remains in the hands of the Trust’s trustee, until such time as a specified event occurs—for example, upon an individual attaining a certain age.
- Will: A Will is a legal document expressing an individual’s intentions and directions regarding their property, assets, and debts, and naming an Executor to administer their Estate upon their passing. A Will can also include provision for guardianship of minor children and express the Will-maker’s intentions regarding funeral and burial arrangements.
Who’s Who?
- Beneficiary: A beneficiary is an individual entitled to receive some or all of an Estate’s assets by virtue of a deceased’s Will, the Wills & Succession Act, or a Court Order.
- Estate Administrator: An Estate Administrator is a person appointed by the Court via Grant of Administration to administer an intestate Estate. An Estate Administrator’s right to act is based on the provisions of the Estate Administration Act.
- Executor/Executrix: An Executor, or Executrix, is an individual appointed in a Will to administer a deceased’s Estate and distribute the deceased’s property to the beneficiaries named in the deceased’s Will.
- Guardian: A Guardian is an individual appointed in a Will to assume care and custody of an individual normally in the Will-maker’s charge upon the Will-maker’s death, such as a minor, or a person who otherwise lacks capacity to care for themselves.
- Personal Representative: In Alberta, ‘Personal Representative’ is the correct legal term for an Executor or Executrix.
- Residuary Beneficiary: A Residuary Beneficiary is entitled to receive a share of the residue of a deceased’s Estate. The residue is whatever remains after the satisfaction of debts, payment of taxes, executor compensation, and legal fees, and after all specific gifts, bequests, and legacies have been accounted for.
- Trustee: A Trustee is an individual who holds legal ownership of property on behalf of an Estate until such time as the Estate’s beneficiaries are entitled to receive it.
When Someone Dies Without a Will
- What Happens to my Assets if I Die Without a Will?
- Intestacy—What is It, and What are the Implications?
- Who acts as Executor When Someone Dies Without a Will?
- Will My Assets go to the Government if I don’t Leave a Will?
- What is a Grant of Administration?
- What is a Grant of Administration with a Will Annexed?
When Someone Leaves Behind a Will
- What Happens to my Assets if I Die Leaving a Will?
- Probate—What is It, Anyway?
- The Probate Process—A Timeline
- Probating a Will Without a Lawyer—Pros and Cons
- When does a Will Need to be Probated in Alberta?
- What if the Deceased Left Multiple Wills?
- What is Testacy?
- Limited Grants of Probate
General Estate Administration Topics/FAQs
- Probate Law in Alberta
- Your Probate Lawyer’s Role in the Probate Process
- Wills and Succession Act vs. Estate Administration Act
- Surrogate (Probate) Court Rules
- Bonds – Probate/Surety
- Probate/Administration Court Fees in Alberta
- Probate/Administration Legal Fees in Alberta
- NC Forms—What are They, and Where do I Find Them?
- The CPP Death Benefit
- What Happens after Probate/Administration is Granted?
- Estate and Inheritance Taxes in Alberta
- Testamentary Trusts
When You’re an Estate Executor/Personal Representative
- Where do I Start?
- Should I Even Take the Job?
- Executor Compensation in Alberta
- Reimbursement for Executor Expenses
- Executor vs. Personal Representative vs. Estate Trustee
- What is an Executor’s Role?
- Opening and Maintaining an Estate Account
- An Executor’s Checklist
- What Happens When There’s No One to Act as Executor?
- Conflicts Between Executors
- What Happens When 2 or More Individuals Have an Equal Right to Act as Executor?
- Who is Responsible for Monitoring an Executor?
- Should an Executor Require Beneficiaries to Sign Releases Before Distributing Estate Property?
- What Happens When the Executor Named in the Will has Already Passed Away?
- Executor Insurance/Liabilities
When You’re an Estate Beneficiary/Interested Person
- Can a Beneficiary Request Trust Funds Before the Will Entitles Them to the Same?
- Can a Beneficiary Expect to Receive Estate Funds Before Probate/Administration is Granted?
- Can a Beneficiary Require an Executor to Provide an Accounting of Their Handling of Estate Funds?
- What can a Beneficiary do if They Believe an Executor is Misappropriating Estate Funds?