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Which Court handles matters relating to wills, estates and probate?
All of these matters are dealt with by the Surrogate office, which is a branch of the Court of Queen’s Bench of Alberta. There are 11 Judicial Centres in Alberta and each has a Surrogate office. When making an application for a grant it must be filed at the Judicial Centre that is closest by road to the location where the deceased resided on the date of death unless the Court permits otherwise. You can click here to determine a location of the Court of Queen’s Bench in Alberta.
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What are the Surrogate Rules of Court?
The Surrogate Rules of Court are provincial regulation. These rules set out the practices and procedures followed in the litigation and processing of estate matters. The Rules can be purchased through the Queen’s Printer Bookshop or viewed online here.
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What are executors/executrixes/personal representatives?
Executor (male person) and executrixes (female person) are appointed by the testator or by the Court to carry out the directions of the testator’s will. Or to administer an estate when there is no will. Executors or executrixes are referred to in the Surrogate Rules/Forms as the personal representatives.
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What is an heir or beneficiary?
An heir, commonly referred to as a beneficiary, is someone named in a will to receive money or property after the testator/testatrix dies. A beneficiary will be either a residual beneficiary (i.e., a person getting a part or all of the estate), or a non-residual beneficiary (i.e., a person getting a specific gift, such as a ring or $1000). A beneficiary could be a person or a charity and can receive money or property by being named in a will, in a RRSP, or in an insurance policy. If a will cannot be found, this is referred to as Intestacy; the persons that are entitled to receive gifts are also called heirs or beneficiaries.
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What is an estate?
An estate is the money, property, real estate and other belongings left behind when someone dies.
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What is a grant of probate?
When a person dies leaving a will it is called “testate”. The person that has passed away may have left assets that he or she had bequeathed (gifted). The person or persons named as personal representatives (executor/executrix) have the responsibility to administer the estate. If assets are in the name of the deceased only, the holder of these assets (Bank, Land Titles or other holders) may require a Court order or direction from the Court to release these assets to the personal representative. An application would have to be made to the Surrogate office for a grant of probate. When a grant of probate issues it proves the validity of the will by the Court giving the personal representative the authority to distribute the estate in accordance to the will and the laws of Alberta.
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What is a grant of administration with will annexed?
A grant of administration with will annexed is a Court application that is applied for if a will;
• Does not appoint an executor/executrix known as a personal representative; or
• If the named personal representative dies and an alternate personal representative has not been appointed; or
• If the alternate personal representative dies leaving no other person to administer the estate as directed in a will; or
• If any of the named personal representatives are unwilling or unable to act.
The person with priority to apply or the person that would have preference would be determined in accordance with rule 11(1) of the Surrogate Rules of Court. A grant of administration with will annexed would issue by the Court, allowing the personal representative to administer the estate in accordance to the will and the laws of Alberta.
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What is a grant of administration?
When a person dies without a will it is called “Intestate”. A thorough search for a will must be conducted and if unsuccessful a grant of administration could be applied for “if” there are assets that need to be administered. Preference to apply to be the personal representative can be found in the Intestate Succession Act and in Section 11(2) of the Surrogate Rules. An application for administration would be applied for to the Court. Once the grant of administration is issued it would allow the personal representative to distribute the estate in accordance with the laws of Alberta.
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What is a codicil?
A codicil is a document that formally amends or changes a will; it must be dated, signed and witnessed just as the will would be. It must make reference to the will it is amending. A codicil can add to, take away, or modify the terms of the original will. When you are applying to the Court for probate both the original will and the original codicil or codicils are submitted to the Court. A testator may make more than one codicil.
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What is a holograph will?
A holograph will is a handwritten will. The testator/ testatrix have made a will wholly in his/her own handwriting. It must be dated and signed by the testator/testatrix. It can be with or without witnesses. Holograph wills are discussed in section 7 of the Wills Act of Alberta.
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Do I need to apply for a grant of probate or a grant of administration?
The personal representative (executor/executrix) named in a will, or the person that would have priority to apply for an administration can determine if a will has to be probated, or if an administration is needed to be applied for, by contacting the holders of all the assets (Banks, Land Titles etc.) owned by the deceased. They would inquire what would be needed to have these assets released. The value or size of the deceased person’s estate is not necessarily the determining factor. An estate can be in a deficit and the personal representative may have to apply to the Court for probate or administration. If you have questions about whether to apply for probate or administration, you may need legal advice from a lawyer.
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Can I apply for probate or an administration on my own or do I have to have a lawyer?
You can apply for a grant of probate/administration on your own. The personal representative would make this decision. However, as the personal representative you would have to familiarize yourself with the appropriate rules, regulations and all applicable Acts concerning your application. If you require legal advice you will have to make these inquiries to a lawyer. The forms are available from the Queen’s Printer Bookstore in Edmonton. The Surrogate clerks in the Judicial Centre where you need to apply and the Law Information Centre (LInC) do not supply the forms and are not lawyers. The Surrogate clerks and the LInC staff are available to assist with general questions.
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Where can I find a lawyer able to help me with estate matters?
Look in the Yellow Pages under “Lawyers” or contact the Law Society of Alberta’s Lawyer Referral Service at 403-228-1722 in Calgary, or toll free line at 1-800-661-1095. The toll free line is valid in Alberta, Saskatchewan, Lower Mainland British Columbia, Yukon, NWT, and Nunavut. Lawyer Referral provides the names of three lawyers at a time that are registered as offering a free half hour legal consultation.
If you wish to research your matter further on your own, you can do so at the Alberta Law Society Libraries. Locations can be found at: www.lawlibrary.ab.ca. The librarians can assist you in locating the reference material on estate matters.
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Where can I get probate/administration forms?
You can order your Surrogate forms package at a cost of $21.95 plus GST from the Queen's Printer Bookstore in Edmonton:
Queen's Printer Bookstore
10611 98th Avenue
Park Plaza building
Edmonton Alberta
Tel: 780-427-4952
Those who live outside the local calling area can call toll-free by dialling 310-0000 followed by 780-427-4952. This package contains forms that would be required in most types of Surrogate applications. The package also contains completed samples of a probate, administration and a copy of the Surrogate Rules to assist you in completing the application. These forms should not be double-sided, they should be handwritten neatly in ink, or they can be computer generated keeping the same format. You may have different or complicated issues that may not be addressed in these samples and you may have to adjust your forms to deal with your situation. You may have to consult or hire a lawyer for any legal advice.
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What does it cost to file a probate application?
Fees are charged based on the net value of the estate as follows:
| Estates valued at $10,000 and under: |
$ 25.00 |
| Estates valued over $10,000 but not more than $25,000: |
$100.00 |
| Estates valued over $25,000 but not more than $125,000: |
$200.00 |
| Estates valued over $125,000 but not more than $250,000: |
$300.00 |
| Estates valued over $250,000: |
$400.00 |
Court filing fees and other fees charged by the Surrogate office are set out in the Court Fee Schedule in Surrogate Rules of Court, Part 5, Schedule 2.These Rules are available to view online and can be purchased through the Queens Printer Bookstore here.
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Where can I find a copy of a will or view an estate file?
If a will has gone through probate, you can make a request to view or obtain a copy of it by contacting the Surrogate office in the Judicial Centre in which the probate or administration was filed. All estate files are open to the public. If you are not certain whether a will has been probated or if an administration has been filed, you may do a search in person, or by mail at any of the Surrogate offices in Alberta. You can search a deceased person’s name with the date of death. If a file has been located you will need to contact the Surrogate office in the Judical Centre where the file had been opened. There is a search fee of $10.00 per name which includes the viewing of one court file. Photocopies are $1.00 per page. You can obtain the addresses and phone numbers for each Court of Queen’s Bench Surrogate office online here.
If a will has not been probated or an application concerning the deceased person has not been made, the Surrogate Office will not have a record of it. The Province of Alberta does not have a Will Registry and wills by themselves are not filed in our offices. You might be able to locate the will by contacting the estate administrator, the executor/executrix, or the lawyer of the testator.
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How do I challenge the validity of a will or the distribution of the estate?
If you have concerns with the validity of a will, distribution of a will, or if the will is not being probated because of unnecessary delay, you should seek legal advice. A lawyer can advise you of the law; or you may also review the Surrogate Rules of Court.
If you initiate a challenge to the validity of a will, or the distribution of a will, you would require documents and direction as stated in the Surrogate Rules under contentious matters. The Law Information Centre (LInC) office may be able to assist with general questions and the forms. Please note the coordinators with LInC are not lawyers. Please visit the Law information site here.
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Where do I get information on an Enduring Power of Attorney?
An Enduring Power of Attorney is not registered with the Surrogate office. The person that gives a Power of Attorney is called a Donor. The Donor would keep the document in their possession or give it to their Attorney for safe keeping. Refer to the Powers of Attorney Act and/or seek the advice of a lawyer with any questions you may have. You may also contact the Government of Alberta-Seniors and Community Support at: www.seniors.gov.ab.ca/opg/ and search “Power of Attorney”.
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When do I need to apply for Guardianship/Trusteeship for a proposed represented adult and where can I get forms?
The Adult Guardianship and Trusteeship Act replaced the Dependent Adult Act on October 30th, 2009. The new Act provides a broader range of decision-making options for adults. The Adult Guardianship and Trusteeship Act (AGTA) provides for the care and supervision of individuals and/or estates of persons over 18 years of age who lack the capacity to make decisions regarding their own personal and/or financial matters. All inquiries regarding guardianship/trusteeship should be directed to the Office of the Public Guardian. The Public Guardian has regional offices throughout the province of Alberta. Contact information can be obtained at: www.seniors.gov.ab.ca/opg/ and the forms required would be available through this website. You may also contact a lawyer for legal advice. The Surrogate office is only able to deal with these applications after they are processed through the Public Guardian’s offices. In some cases there may be urgency to obtain guardianship or trusteeship. In these cases contacting a lawyer may be advisable.
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