One of the questions I am frequently asked is, "What can I do to avoid probate?
It's an interesting question because more often than not, people really don't
understand what probate is all about. They just know that it is something you
want to avoid.
What is Probate?
Probate is an administrative procedure the Court uses to authenticate a
document that purports to be the last will of a deceased person. When the Gou
issues a grant of probate, what it is really doing is telling the world that the
document in question is in fact the last will of the deceased and that persons ar
entitled to rely upon the authenticity of the document.
Probate gives comfort to the individuals who act as executors by confirming the
validity of the wJlI. It would be devastating for an executor to learn after
distributing the assets of an estate according to what he or she thought was the
last will of the deceased only to find out that, in fact, another will had been mad,
leaving the assets to a different group of people.
Probate also gives comfort to those people-like banks and financial advisors-
who hold assets for the deceased. Only through probate can they be assured
that the person asking for the deceased's money is in fact the executor appoinn
by the deceased. Asset holders are not keen on paying over money without
some level of assurance that they are paying money over to the right person.
Probate gives that assurance.
The Costs of Probate?
The costs of probate are less than most people think. Alberta has by far the
lowest probate fees in the country with the maximum fee being a mere $400.
Other Canadian jurisdictions impose a probate tax on the gross value of the
estate. British Columbia, for example, charges a probate tax of 1.4 on estate
with a gross value over $50,000. Probate taxes in those jurisdictions can quick
add up. It is not surprising that in those jurisdictions, estate planners employ
measures to avoid costly probate fees. Probate fee considerations simply don'i
apply in Alberta.
Is Probate Necessary?
Whether an executor wishes to obtain probate for their own comfort and
protection is a decision for the executor to make. The estate lawyer can help th
executor make this decision. Often, however, the decision is beyond the contro
of the executor. If the deceased owned land, for example, at the time of his or
her death and the land was not jointly registered, the Land Titles Office will
require the executor to obtain a grant of probate before dealing with the lands.
Similarly, if the deceased owned investments at the time of his or her death, mo
investment dealers require probate as a condition of turning over the funds to th
Probate may not be needed in cases where the estate of the deceased person i
quite simple and does not include land. In some circumstances, asset holders
may waive their right to probate. This can occur, for example, when the survivir
spouse is the sale beneficiary of the estate and is well known to the person who
holds the assets. When this occurs, the asset holder may seek protection by
other means, such as taking an indemnity from the surviving spouse.
Probate - Nothing to Fear in Alberta
For Albertans, probate is not something that needs to be feared. As noted, the
maximum probate fee in Alberta is $400. The tools used to avoid probate-
especially intergenerational joint property ownership-carry with them the
potential for adverse consequences and should only be used after careful
consideration of the risks involved.