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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.



40 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
  6. Regarding Form NC20: On page 143 of your book you say "do not send the beneficiaries who receive a Form NC20 a full copy of the entire application or the whole will" so my question is what do we send the non residuary beneficiaries?

    ReplyDelete
    Replies
    1. Non-residuary beneficiaries only get the notice. Some lawyers will include a copy of just the paragraph in the will that leaves the non-residuary gift, but you are not required to send anything but the notice itself.

      Lynne

      Delete
  7. If you are the executor and the sole beneficiary, do you need form NC 27 commissioned and submit this to the court indicating you sent the documents to yourself

    ReplyDelete
    Replies
    1. Hi SimpleLife,
      No, you don't. Use the Acknowledgements on the bottom of the notices. The clerk of the court might ask you for the NC27 but you can simply point out that you are both executor and beneficiary and that you have signed the acknowledgements.

      Lynne

      Delete
  8. Hi Lynne,
    Thank you for putting this great resource together. I have a couple of questions about NC27. If I am sending the same document to 8 people, what do I put under exhibit? And, if what I am sending is the NC19 notice with the full application, under documents on the NC27 do I just list the NC19, or do I also list the documents that are attached to the NC19?

    Thanks for any clarification you can provide.

    Katherine

    ReplyDelete
  9. Hello Lynne,
    I believe I have the paperwork completed but I do have one question regarding NC27. The sample shows listing name and address of all beneficiaries but leaves very little room to do so. Can I put see below and list them on the bottom of the page?
    Thank you,
    Pamela

    ReplyDelete
    Replies
    1. Hi Pamela,
      Yes you can. As long as you're following the general template of the document, it's okay to move things around a bit.

      Lynne

      Delete
    2. Thanks Lynne.
      So you’re saying I can reconfigure the document to add more room for beneficiaries, yes?
      I was wondering if I can use the original form in the package I bought and list beneficiaries at the bottom of the page. Not sure if I can do that. I will check online to see if I can do as you say.
      Thanks again, you rock!

      Delete
    3. Yes, you can reconfigure it to some extent. As long as the information is there and the document makes sense, you should be good to go.

      Lynne

      Delete
  10. Hello Lynne,

    I am the executor and a beneficiary. My brother is a beneficiary. I have a question re NC19. Is it ok to submit two NC19 forms - one for me and one for my brother along with NC27 that says that I have hand delivered these to myself and my brother.

    Or do I need to add that "I hereby acknowledge receipt of notice..." on both NC19s. One to be signed by me and one to be signed by my brother.

    Thank you.

    ReplyDelete
    Replies
    1. You can do it either way, but the accepted method to serve yourself with a document is to use the acknowledgement on the bottom of the NC19. Having said that, either of the methods you mention should satisfy the legal requirements.

      Lynne

      Delete
    2. Hi Lynne. Could you clarify a point for me please? If I sign the acknowledgement do I also have to include it on NC27 as being served, or do I leave myself out altogether and just submit the NC19 for myself at the end of the documents. Thanks!

      Delete
    3. No, you don't have to include it on the NC27. The acknowledgement replaces the NC27. Make sure you send the original acknowledgement to the court with your application.

      Lynne

      Delete
  11. Thank you so much Lynne! I really appreciate your help and guidance.

    ReplyDelete
  12. Hi Lynne!
    I'm helping my Dad complete the probate for his mom. Both my dad and uncle are listed as co-executors in NC2. Are they both required to sign NC27 as well? Or just the one actually delivering the probate to the court?

    ReplyDelete
  13. Hi: I am helping my husband probate his mom's estate - comments from the court house regarding his NC2 says we must clear off all other executors. I am not sure how to do this. The will originally had his sister as Executrix but there is a First Codicil revoking that and naming my husband. Is there an example of wording?

    ReplyDelete
    Replies
    1. Did you send the codicil with the will? You should be probating both of them together.

      When they say "clearing off other executors" they basically want a statement of why there are two executors named but only one of them is applying. Simply say that your husband was named as co-executor but the codicil dated XXX changed the executor appointment so that he is the sole executor.

      Lynne

      Delete
  14. Can you help with some wording for NC2? We need to clear off other executors. there is a codicil revoking the executor and naming a new one.

    ReplyDelete
    Replies
    1. This seems to be the same question as above, which has now been answered.

      Lynne

      Delete
  15. One more question. The will states that the estate be divided equally among the adult children. There were 4 - one of them passed away a few years ago. She left a husband but no children. The provision was that if someone predeceased, their share would go to their children or if none, divided equally among the remaining. So, question, on the NC6 beneficiaries, I know I have to list the deceased beneficiary. So for the nature of the gift do I put 1/4 the estate or 1/3 of the estate? Also what do I put on NC 19 , 1/3? Thank you so much,

    ReplyDelete
    Replies
    1. No, you don't list the deceased person on the NC6 as a beneficiary receiving part of the estate. List the name and then say something like "predeceased leaving no children".

      You wouldn't do an NC19 for a deceased person.

      Lynne

      Delete
  16. This comment has been removed by the author.

    ReplyDelete
  17. Lynne, what if I use multiple forms of nc27. Are they each marked “exhibit A”? Thanks so much. It can be quite confusing.

    ReplyDelete
    Replies
    1. Yes, it can for sure become confusing.

      By 'multiple forms' I assume you mean that each person you served is getting a separate NC27. If that's the case, then yes each one has its own exhibit A.

      Lynne

      Delete
  18. One more question in this regard Lynne, the example says served “tru copies” but the instructions say attach copies to the nc27. Shouldn’t we serve the originals? Thanks Lynne. Your help is so appreciated.

    ReplyDelete
    Replies
    1. No, the court wants the originals. Just serve copies.

      Lynne

      Delete
  19. hi, in the list of Exhibits on the NC27, do I show just the NC 19 or NC20 or do I list out each of the NC1 - NC7 that are included with each NC 19? It makes for a long list of exhibits ! thanks Shawna

    ReplyDelete
  20. Hi, I was planning to serve NC19 and NC20 by personal service to my 2 siblings and myself. Is there anything I should in the way of acknowledgements of receipt of these documents (other than NC27). I didn't see an acknowlegement section on either NC19 or 20. Thanks for an excellent probate kit.

    ReplyDelete
    Replies
    1. I'm glad the kit is working for you. I tried to include every single detail but I get enough questions to know I didn't catch them all.

      Yes, you can certainly put an acknowledgement on the NC19 and/or the NC20 for service on yourself (not for your siblings). That is exactly what that acknowledgement is for. Put it on the original NC19 or NC20 and after you've signed it, include it with your package of documents that goes to the court.

      Lynne

      Delete

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