What Is A Probated Will?
Posted by on Sep 1, 2024 in Blog, Wills & Estate
Understanding what happens to a person’s estate after they pass away can feel overwhelming, but it doesn’t have to be.
If you’re dealing with a loved one’s assets or planning your own estate, you may have heard the term “probated will.”
Simply put, a probated will is a legal process where the court authenticates a deceased person’s will, giving the executor the authority to manage and distribute the estate according to the will’s instructions.
Working with an Edmonton estate lawyer can help you through this process and clarify any concerns you might have.
What is Probate/Grant of Probate?
Probate is the legal process of verifying a person’s will after they pass away.
It involves a court confirming that the will is valid and giving permission to the person named in the will (called the executor) to handle the deceased’s affairs.
This means the executor can pay any outstanding debts and distribute assets, such as money or property, according to the wishes outlined in the will.
The court’s approval is given through a document called a Grant of Probate.
This document is often needed to show banks and other institutions that the executor has the legal right to manage the estate.
Can Probate Be Avoided?
In some cases, the probate process can be bypassed. This usually depends on how assets are owned or structured.
For example, if assets are held jointly with rights of survivorship, they can pass directly to the surviving owner without going through probate.
Naming beneficiaries on accounts like RRSPs, TFSAs, or life insurance policies can also avoid the need for probate on those assets.
Consulting with an estate lawyer can provide clarity on your unique situation and explore options for minimizing the probate process.
Who Regulates the Probate of a Will?
In Alberta, the probate of a will is regulated by the Surrogate Court. This court’s role is to review and approve the will, making sure it’s legally valid.
Once the will is approved, the court gives the executor the legal authority to carry out the instructions in the will.
This process helps ensure that the estate is distributed correctly and fairly, according to the wishes outlined in the will.
How Does Probate Happen Without a Will?
If someone dies without a will, the estate is considered “intestate,” and the probate process still occurs, but it follows different rules.
In this case, the court will appoint an administrator to handle the estate, and the assets will be distributed according to Alberta’s intestacy laws.
This distribution may not align with what the deceased would have wanted, which is why creating a will is so important.
Is the Probate Process Always Necessary?
The probate process isn’t always required. Here are three situations where probate can be avoided:
Joint Ownership
When assets, such as a home or bank account, are held jointly with someone else, they can pass directly to the surviving owner.
This transfer occurs automatically, without the need for probate, because the joint ownership structure already establishes the new owner.
Named Beneficiaries
Certain financial accounts, such as life insurance policies, RRSPs, or TFSAs, allow you to name beneficiaries.
Upon the account holder’s death, these assets can be transferred directly to the designated beneficiaries, bypassing probate entirely.
Small Estates
If an estate is relatively small and straightforward, with minimal assets and no significant debts, the probate process may not be necessary.
This is especially true if there are no disputes among beneficiaries and all parties agree on how the estate should be distributed.
How Long Does the Probate Process Take?
The length of the probate process can vary. On average, it takes a few months to a year to complete.
Factors that can impact the timeline include:
- The size and complexity of the estate
- The clarity and completeness of the will
- Disputes or disagreements among beneficiaries
- The number and location of assets
- Any debts or taxes that need to be settled
An experienced estate lawyer can provide guidance on what to expect based on the specifics of your case.
What Can Delay the Granting of Probate?
The probate process can take longer than expected for several reasons.
Here are some common issues that might cause delays:
Missing or Unclear Information
If the will is incomplete or lacks specific details, it can lead to complications.
For example, if the document doesn’t clearly identify all beneficiaries or list all assets, the court may require additional information or clarification.
This can slow down the process and may involve extra steps, such as tracking down documents or verifying information.
Disputes Among Beneficiaries
When beneficiaries disagree about the terms of the will or how the estate should be managed, it can lead to legal disputes.
These conflicts can significantly delay probate, as the court may need to intervene to resolve issues.
Disputes can arise over the interpretation of the will, the distribution of assets, or even the appointment of the executor.
Difficulty Locating All Assets
If the executor cannot find all the assets mentioned in the will, this can create delays. This might happen if there is no clear record of bank accounts, property, or other valuables owned by the deceased.
The executor may need to conduct a thorough search and work with financial institutions or other parties to locate and value these assets before the probate process can proceed.
Why Working with an Edmonton Estate Lawyer Matters
Dealing with the probate process can be challenging, especially when you’re already coping with the loss of a loved one.
An experienced estate lawyer can guide you through the complexities, help avoid common pitfalls, and ensure that your loved one’s wishes are respected.
At Heritage Law, we’re committed to supporting you every step of the way.
Whether you need assistance with probate, estate planning, or understanding your rights as a beneficiary, our team is here to provide compassionate and professional guidance.
Reach out to us today to see how we can help you navigate this process with confidence and peace of mind.
