ROLE OF A PROBATE LAWYER IN DEALING WITH ESTATES
After a loved one passes, many questions can remain. A Calgary probate lawyer can assist you in all matters relating to probate, wills and estates. He or she will have significant training, including continuing legal education, and years of experience to handle estate matters in court. He or she can help you locate and secure the decedent’s assets, oversee the execution of a will and much more. The lawyer will provide representation, advice, mentoring, and may already have significant successful estate litigation experience.
WHY IS A GRANT OF PROBATE NEEDED?
Usually, the land registry office, financial institutions and other advisors require a Grant of Probate before dealing with estate assets.
WHO MAY HIRE AN ESTATES LAWYER?
It is usually an executor needing a Grant of Probate that hires an estates lawyer. Often the same lawyer or law firm who prepared the deceased’s Will is contacted to prepare the court filings needed and assist with the estate administration, though hiring the same lawyer is not a requirement. An estates lawyer can also be hired by one or more beneficiaries or heirs who are concerned about the validity of a Will and/or their entitlement. Sometimes, a financial institution that is named in a Will as executor or acts as an agent to the executor will hire a local probate lawyer to prepare, file and obtain the letters of probate from the court.
WHAT IS THE SCOPE OF ESTATE LAWYER’S ROLE?
The estates lawyer that is hired can take the executor (or administrator if there is no valid Will) through the entire probate process from start to finish. The estates lawyer can be involved minimally or quite extensively in the estate, depending on its unique issues, the time and abilities of the executor, complexity of the estate, and if any disputes arise, such as outstanding amounts expected by creditors.
WHAT FACTORS AFFECT THE PROBATE PROCESS?
The steps involved in probating an estate will depend on a number of factors, such as whether the deceased had a Will, if it is valid in the jurisdiction in which it was written, and the value of the decedent’s estate (probate may not be required for very small, uncomplicated estates). The probate process may also depend on where the deceased died, normally resided and was considered domiciled (i.e., the place considered to be home). The procedure involved will depends on whether the decedent owned any real property outside of Alberta, which would be subject to the laws governing where the property is located.
HOW A CALGARY PROBATE LAWYER MAY ADVISE & ASSIST THE EXECUTOR
When representing the executor of an estate, the probate lawyer may advise and assist with the following, including in the capacity of agent for the executor:
- Locating and securing the deceased’s assets, including registered plans and life insurance if no beneficiary was named
- Obtaining values and appraisals of all of the decedent’s property as of the date of death, including any business assets
- Applying for a death certificate
- Calculating probate fees and determining where to draw the payment from
- Preparing and filing all documents required by probate court in a timely manner, including any less common grants of probate or resealing needed
- Obtaining a Grant of Probate from the Alberta court, approving the Will if there is one and the appointment of an Executor or Administrator
- Providing disclosure to the beneficiaries of their entitlement and the estate administration process
- Overseeing the execution of provisions in the Will, such as the creation of trusts and guardianship of minor children
- Assistance with applying for the CPP death benefit and/or CPP survivor’s pension
- Publication of notice of creditors and claimants
- Advising with respect to making appropriate elections, including registered plan roll overs
- Advising with respect to realizing estate assets, such as transferring investments into safe instruments until distribution of the assets, in order to protect their value
- Advise regarding closing of accounts no longer needed and payment of the decedent’s final bills and outstanding debts
- Advise regarding managing the estate accounting and passing of the accounts, if needed
- Advise regarding retaining an accountant to address income tax issues, including ensuring that prior tax returns are up to date, the decedent’s final return is submitted and approved, along with any estate returns
- Requesting a court ruling or permission for various actions if needed
- Advise regarding amounts payable to a minor (to determine if the payment must be made into court)
- Assisting with the sale of estate property
- Preparing releases for the residual beneficiaries to sign for the executor prior to distribution
- Retitling the decedent’s real estate into the names of the estate beneficiaries if it is not being sold to a third party
- Advise regarding distributing the remainder of the decedent’s assets to the beneficiaries once payment of the bills and taxes is complete and Canada Revenue Agency issues a Clearance Certificate
A beneficiary or heir may hire an estates lawyer for legal advice and/or representation in a legal issue related to the decedent’s estate. When representing the beneficiary(ies) or heir(s) an estate, the probate lawyer may advise and assist with the following:
HOW A CALGARY PROBATE LAWYER MAY ADVISE & ASSIST THE BENEFICIARY(S) OR HEIR(S)
- Advise on legal and other matters presented to the beneficiary by the executor during the probate process
- File an objection for a particular person to become the executor or administrator of the estate (e.g., due to poor past financial decisions)
- File a challenge to the Will, such as on grounds concerning testamentary capacity and/or undue influence
- File an objection to court about the conduct of the executor, such as failure to provide an accounting, mismanaging funds, self-dealing or treating the beneficiaries unevenly
- Request a formal passing of accounts in court
- File a statutory election to treat the death financially as if it were a divorce (if the deceased did not adequately provide for the spouse)
- File a statutory election for support of a dependent(s)
Contact Dukeshire Law Office for a Probate Lawyer in Calgary
At Dukeshire Law Office, we have extensive experience with obtaining probate in Calgary and the estate administration process until its completion. We can assist you with any questions or concerns you may have with respect to a Will or estate. Contact us today at 403-286-7008.