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Thursday, July 16, 2009

Does Your Will Need to be Probated?

A question that I've been asked by dozens of clients over the years is whether their Wills will have to be probated after their death. Though I'm sure everyone wants a simple "yes" or "no" answer, unfortunately it's not that simple.

There is no law that says every Will has to be probated. Whether or not your Will will need to be probated after your death will depend on the type of asset (real estate, cash, investments, business, etc.) you own and how the assets are held (joint names, in your own name, etc.). This is why, when I am asked whether someone needs to apply for probate, I have to ask a few questions of my own before I can answer.

When estate planning is done properly for a married or common-law couple, their financial affairs are usually set up so that probate is not needed when the first spouse dies. They achieve this by having their home in joint names, their accounts in joint names, and they name each other as the beneficiary of their own RRSPs or RRIFs. Because of the way the assets are held, there is no need for probate.

Even between a husband and wife, probate will be needed if the spouse who has died owned a business, real estate or a significant amount of money in his or her own name.

When the surviving spouse then dies, the picture is more complicated. The assets that once belonged to the couple, such as their home and its contents, will now be distributed to someone outside that couple. Usually at this point, probate is required in order to transfer the assets.

Probate is a court process which declares a deceased person's Will to be their valid Last Will, confirms the appointment of the executor, and directs everyone involved in the estate to deal with the estate in accordance with the Will. Sometimes this involves having the courts interpret an unclear clause or clarifying what was meant by the deceased person, when that is unclear just from reading the Will. If you are the executor of a Will for someone who has died, you get a Grant of Probate document by applying to the court and paying a court fee. The Grant of Probate is a court order, and therefore it has to be followed.

Always remember that if you are asking for a legal opinion, go to an expert in the area of law that concerns you. If you have probate questions, look for a lawyer who practices exclusively in Wills and Estates. If you need helping finding someone in Alberta, post a reply here and I'd be happy to help guide you to someone reliable and knowledgeable.

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