Real Time Web Analytics

Monday, January 10, 2011

Frustrating quirk in Alberta probate application

I received a reader question that was posted on one of the threads but that I'd like to share with you. Reader... I understand your frustration!

"I have embarked on the road to DIY probate using the materials included in the Alberta Surrogate Court kit. My first application was returned, due in part to a couple of oversights on my part, but also for reasons not explained anywhere that I could find, which I found incredibly frustrating.
As both inheritor and executor I did not realize that not only did I have to fill out forms NC 19 and 20 for myself to notify myself that I am a beneficiary, I also had to write and sign an acknowledgement that I had received those forms. I was not given the proper wording for the acknowledgement and am now worried that if I don't do it correctly my next submission will also be returned. Since the application and pickup of materials must be done in person it gets to be time consuming and frustrating. I think it is really pitiful that the province provides a kit that is supposed to let the average Joe file for grant of probate, but does not give us the tools to do so. I hope your book will cover this. I have appreciated reading your website which is easy to navigate and very well written. "


In my book, I specifically addressed the issue of serving notice on yourself, which is one of those quirky little details that makes people crazy. The correct procedure is to prepare the NC19 and 20 notices (which by the way can sometimes be combined into one form), add the acknowledgement on the bottom, sign them, and include the originals in the application for probate. Notices served on other people are included in the affidavit of service but this special procedure is intended to avoid you having to serve documents on yourself.

The wording for the application is:
"I hereby acknowledge receipt of notice of the application for probate, including a full copy of the application, in the estate of ____, deceased."

If you've had your application for probate bounced back to you, insert the NC19/20 (with signed, dated acknowledgement on the bottom) into your original application, and re-submit it.

I think the kit provided by the province is intended only to be a compendium of forms, not necessarily a kit with any advice. This is one of the reasons I decided to do a kit for Alberta probate.The forms are not a lot of good without any instructions.

10 comments:

  1. Im frustrated and perplexed. My brother passed last September. A family member had been made exeutrix. In the months after his death, the executrix has become alienated and hostile toward all benificiaries. We received copies of the will in October and have since only met with hostile responses when trying to find out where the will process presently stands. She has told us that the following are not yet finished:
    1. probate-but when I went to court of queen's bench in March, I got a document that says it cleared on Dec. 16
    2. She says she has only filed the first of three taxes and no certificate of clearance has been given - would not all taxes be due by April 30th?

    This executrix is planning on holding off on distribution of assetts for as long as she can. She threatens us if we ask for clarrification. I have seen a lawyer and as of yet we know she has not acted illegally, just immorally. Is there anywhere we can check to see what stage the will is at without going through her?

    ReplyDelete
  2. That sounds frustrating.

    About the taxes - it may be a bit difficult to finalize if there were assets to sell, especially if the grant of probate was issued in December, it may be that assets were not sold until the next year, resulting in one more year of taxes to be done. There may be different rules and deadlines with estates, and I know it can take as long as 2 years AFTER the final tax return is filed for Canada Revenue Agency to issue the tax clearance certificate. Our government, hard at work.

    Maybe the executrix could consider doing an interim distribution of the estate, holding back an estimated amount for legal fees, taxes and other expenses as recommended by the estate lawyer (if there is one) and the accountant who is doing the taxes.

    I would put all my communication with the executrix in writing, polite and to the point. If something does go wrong, you'll have things in writing to fall back on for reference and it may help reduce the hostility.

    Good luck!

    ReplyDelete
  3. This comment has been removed by the author.

    ReplyDelete
  4. My brother and I are both executors and the only beneficiaries of our mothers estate. Mom passed away on May 15, 2016. Are the taxes for 2015 done now? Are they prepared with the normal tax forms?

    Also I am doing the actual paperwork for the grant of probate...but my brother is in the loop for every move. Do we both sign and acknowledge service of our NC 19 and 20 as if we were both preparing the documents? Or do I need to to serve my brother with these?

    We decided there was no need to advertise for creditors in the paper as we feel confident we know them all. Is this okay or is there a possibility of being bounced?

    Thank you so much for your amazing Probate Kit. It is absolutely amazing! Thx again E.B.

    ReplyDelete
    Replies
    1. You should get the 2015 and 2016 taxes done as soon as you have everything you need. I highly recommend that you hire an accountant if neither of you has tax preparation experience.

      You can both sign and acknowledge service on the NC19s.

      The court won't bounce your application on the basis that you didn't advertise for creditors. It's not required by law that you advertise. Executors choose whether they want to advertise based on whether they think there is any risk of unknown creditors coming out of the woodwork later.

      Thanks for your kind comments about the probate kit. I certainly appreciate hearing that.

      Lynne

      Delete
  5. Hi Lynne,
    A recent application for probate was rejected due to a couple pages of the will not being initialed by the deceased and the witnesses. What can I put down as the reasons for the will not being initialed?
    Thanks,

    ReplyDelete
    Replies
    1. I have no idea. There's no way I could know why they were not initialed. Have you spoken to either of the witnesses to find out what happened?

      What exactly has the court directed? If the court has said the will is, on the face of it, not valid because of those missing initials, you must now follow a different process.

      The process you've been following, which works 90% of the time, is the equivalent of the express lane for probates. But it isn't going to work because the judge has pointed out a flaw in the will. In my opinion, you must now go through a longer, slower process called "proof in solemn form". This basically means calling evidence to show the court that the will is valid.

      Your evidence could end up being anything from notes from the lawyer who drew the will to statements from the witnesses.

      You'll still end up with a grant of probate (assuming the omitted initials can be explained) but it will be a slower, more expensive process.

      You'll probably want to work with a lawyer for this.

      Lynne

      Delete
  6. I'm curious...my dad has passed away and I've retained his lawyer's office to file for the grant of probate. Am I allowed to call the court house to see if I can find a timeline for when the probate will be issued?

    ReplyDelete
    Replies
    1. Sure. If the probate application has been sent to the judge, that's about all you will be able to find out. The courthouse staff obviously have no control over how long it takes a judge to process the application once they give it to him/her. In the jurisdiction where I work, we get our probates back about 2 weeks after the judge receives them. In the province where I practiced before, it was more like 6 to 8 weeks.

      If you find out that the application has not yet been given to the judge, that means something is missing or incorrect. Your lawyer's office would have been told about the issue and asked to correct it. If this is the case, the onus is on the lawyer's office to get it fixed up ASAP so that the clerks can give the application to the judge.

      Lynne

      Delete
  7. Hi Lynne,
    The probate kit has been a Godsend! Thanks. Question: P154 mentions a "sample letter for serving notices" to beneficiaries "included on the CD-ROM. I'm not able to locate it. Does it exist? I have the necessary forms, but not the letter. Thanks!

    ReplyDelete

You might also like

Related Posts with Thumbnails