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Thursday, June 2, 2011

Applying for probate without a lawyer

Recently at a conference in Lake Louise we were told by one of the speakers that one third of all applications for probate received in the Alberta courts were filed by non-lawyers (I really don't know whether a similar number exists in other provinces). I was surprised that the number was so high, but the more I thought about it, the more sense it makes.

Many of us have a very straightforward situation to deal with when a loved one passes away. For example, there is a house, an RRSP or RRIF and perhaps investments or a pension. People are much more willing to learn how to do things themselves these days, and for those who really do have a simple situation to deal with, applying for probate without a lawyer is suitable.

Now, the only way applying for your own probate is going to work is to be honest with yourself about what you're facing. Don't try to do the whole thing yourself if the family members are already squabbling over who gets what or whether the will is actually valid. You can't handle estate litigation without a lawyer so you should get legal advice from the beginning that may head off the litigation. And if there are assets in other countries, tax returns that haven't been filed for years, foreign citizenship, or other complications, be realistic about whether you want to try this on your own.

As anyone who has tried to apply for probate knows, the clerk of the court will return your application to you unfiled if it contains errors or omissions. Another interesting fact stated by the speaker at the conference was that out of all of the applications that failed, the worst ones were filed by lawyers who "dabble" in estate law. Think about it. The clients got worse results with a lawyer than they would have had without one.

A "dabbler" is a lawyer who practices in one area of law, but will occasionally do work outside of his or her area of expertise if asked, and if the fees seem worth it.

I keep telling consumers to find a lawyer who specializes, but many unfortunately do not find one. Now this conference has confirmed what I figured all along - that you need a lawyer who specializes or you might as well just do it yourself.  Look, you don't go to a dentist to get a prostate exam. So why go to a real estate lawyer or corporate lawyer to get an estate done?

How do you know if a lawyer specializes in a specific area? Ask your friends who did their wills. Call the provincial Law Society and ask for a referral. Find someone whose credentials include membership in relevant organizations (e.g. Canadian Bar Association wills section). When you call the lawyer for the first time, before you tell them what you want, ask what kind of work they do the most.  There are plenty of specialists in every kind of law, and they all take new clients, so it's worth looking.

If you're going to apply for probate in Alberta without a lawyer, or if you're using a lawyer but feel you want more information about what to do after you get the probate document, look for my brand new book called "Alberta Probate Kit".


  1. It is extremely important to distinguish between simple legal matters that you can handle yourself, and complex legal issues, that should be handled by an attorney.

  2. A solicitor may be named in the will as an executor – in which case, they will generally administer the estate and the cost of probate will be charged according to their scale at the time.

    The executor’s job is to gather in all your assets, and after paying off any debts, they obtain a ‘Grant of Probate’ on your estate. Finally they pay out the money from the estate according to the Will’s instructions.
    probate law NSW

    1. My experience over the last 30 years has been that lawyers often consented to be named as executor and then stored the clients' wills, all in the hope of getting the chance to administer the estate. However, I don't think believe that way of thinking has worked out. As clients age and their kids get older, they almost always change their wills to name the kids, who then hire their own lawyers to do the work.


  3. Thanks for sharing the information..Actually Probate is the legal process whereby a will is proved in a court and accepted as a valid public document.
    Estate Litigation Lawyers Sydney

  4. Useful information like this one must be kept and maintained so I will put this one on my bookmark list! Thanks for this wonderful post and hoping to post more of this!

    Commercial Lawyers & Litigation Lawyers


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