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Thursday, August 22, 2013

Clarification on the Alberta Probate Kit and form NC19

By the time I wrote the Alberta Probate Kit, I had already had three books published. I thought I was getting pretty good at the editing but I have been proved wrong. There was one thing that got past not just me, but also the eagle-eyed editor at Self-Counsel Press. Many, many people have emailed me to ask for clarification on what enclosures are sent to a beneficiary receiving and NC19 notice, and I've been replying individually. I thought I'd post the correction here in case there are others of you who have also run across this.

A reader asked me just today about this point. Here is her note and my response:

"Thank you for your excellent Alberta Probate Kit.  I have almost completed the forms, but I do have one question about some apparently conflicting advice in the book regarding Form NC27:  On page 141, the book states, "Note that everyone who gets a Form NC19 also gets a full copy of the entire application, including the will."  However, on page 154, the book states "do not send the Form NC1 through NC 18 documents to a person is receiving a Form NC19 notice and no other notice."

These two sentences appear to me to be contradictory. I am leaning towards the advice given on page 141, but I thought I'd check to see if you were aware of this (at least to my non-legally trained mind) conflict."


The Form NC19 is a notice to residuary beneficiaries. Anyone who is going to receive a share of the residue of the estate has to be sent this notice by registered mail. The instructions on page 141 are correct. A residuary beneficiary is entitled to receive a full copy of the entire application for probate, which includes a copy of the will, an inventory/evaluation of the estate, and all of the other documents that make up the application.

Sorry for the inconvenience for those of you who had to take the time to write and ask for clarification.



9 comments:

  1. Lynne,
    I have posted this question elsewhere but does this mean that the following steps have to take place:

    1. Complete probate application including commissioning of required forms.
    2. Make copies and send to beneficiaries with NC 19.
    3. Commission the NC 27 that beneficiaries have been notified.
    4. Submit the package to the courts?

    So there must be two separate commissionings, one for the probate application and a second later for the Affadavit of Service?

    ReplyDelete
  2. Hello Lynne,
    I am the executor of my father's estate and I am using your book, which is excellent. My Dad died in Edmonton; I'm in Vancouver. To file the application for probate you indicate that I need to fill in form NC8 as the will was not prepared by a lawyer and there is no Exhibit A Affidavit of Witness on the back of the will. The will was made in 1995 and the witnesses were probably members of Dad's senior's home. I suspect they are now dead and have no way of finding them. What do I do?

    ReplyDelete
    Replies
    1. Under Alberta's new wills legislation, the court now has the power to rectify a will that doesn't fit all of the formalities, including the witnessing formality. This means that when you apply for probate of the will, instead of attaching the NC8, you would have to make a special request in your NC2 affidavit for the court to allow the will to stand even though you cannot locate the witnesses.

      This isn't a rubber stamp. You really do have to make every possible effort to locate the witnesses, and describe your attempts in your evidence.

      Try to think of it from the perspective of the judge, who is thinking "why should I believe that this will was properly signed and witnessed?"

      If you get stuck and need a lawyer in Edmonton to help you, call David Koski at the Estate House, or Andrew McLaughlin at Turning Point Law.

      Lynne

      Delete
  3. I am the only beneficiary and the executor so do i still need to do NC 19?

    ReplyDelete
    Replies
    1. Yes, do the form but don't mail it to yourself. Put an acknowledgement on the bottom and sign both as executor and beneficiary and include the original signed NC19 with your application.

      Lynne

      Delete
    2. Hi Lynne,
      Both my brother and I are co-executors and the only beneficiaries. On the NC 19 do with both sign and executor and beneficiaries. Also do we state on NC 19 that will gives us "1/2 of the residue of the estate?

      By the way your book is very helpful.

      Delete
  4. Hi there Lynne!

    Could you Please tell me if this Alberta Probate Kit is up to date. Also, does it by chance have any example of a 'beneficiary release'?

    ReplyDelete
    Replies
    1. There are still updates needed, since the book came out before Alberta's WESA was enacted. However, it does contain a release.

      Lynne

      Delete
  5. for NC7 , ON OTHER PROPERTY can I just use words as Household;and personal effects, or do I have to do as seperate entries. if so because their in no room on the form can I as I have with other forms make up another whole form on word and add more spaces, (is it legal or ok to redo the form (but of course I am not altering it.

    ReplyDelete

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