Probate & Estate Administration – Underwood Gilholme – Wills & Estates

Probate & Estate Administrationadministrator2020-08-27T18:33:26+00:00

Probate & Estate Administration

Guidance for Probate Administration in Alberta

As an executor, you are responsible for settling an estate according to the deceased’s final wishes as expressed in the Will and according to provincial law. This includes finding, and if necessary, probating the Will, protecting and distributing assets and paying outstanding debts and taxes. You will also have to prepare a final accounting for the beneficiaries of the estate.

Grant of Probate

A probated Will is a Will that confirms the executor and acknowledges his or her authority to carry out the terms of the Will. Most financial institutions require probate before they will release a deceased person’s assets because it assures the institution that it is handing over the deceased’s assets to the person who is lawfully entitled to receive them.

Without probate, the institution cannot be assured that the Will they have been given is in fact the deceased’s last Will. However, if probate has been obtained, even if the Will is challenged or ruled invalid or if a later Will is discovered (thereby revoking the Will), the financial institution cannot be held liable for releasing assets to the executor named in the probate.

When the value of the deceased’s assets is relatively small, the financial institution may require the executor to sign a Bond of Indemnity in lieu of obtaining probate on the Will. However, executors often find that administering the estate is easier when they obtain probate since it is unlikely that anyone will question their authority to gather and deal with the deceased’s assets.

When someone dies without a Will

In Canada, if you die without a Will (termed “dying intestate”), a court must appoint someone to administer your estate. The legislation provides who has priority to apply to be the administrator.

The court will issue Letters of Administration instead of a Grant of Probate in the following cases:

A person dies without a Will (intestate)
The deceased had a Will but did not appoint an executor
All the executors named in the Will are deceased, unable to act or decline to act

To download a PDF document of the following steps please click here.

PRELIMINARY STEPS
- Locate and examine the Will; review for specific instructions concerning the funeral; locate witnesses, if necessary
- Make funeral arrangements, if necessary
- Obtain original copies of proof of death certification
- Assess financial needs of immediate family and of the estate
- Forward mail, discontinue telephone, newspaper, magazine subscriptions, etc.
- Contact all persons properly interested in the estate – set expectations and give them an overview of the process, from probate to distribution
- Arrange for care and adoption of pets

Probate & Estate Administration Lawyers

Terry E. Gilholme

E-mail Terry
403.288.8855 ext. 236

Jason E. Sweeney

E-mail Jason
403.288.8855 ext. 223

Andrea Blonsky

E-mail Andrea
403.288.8855 ext. 224

Jonathan Ng

E-mail Jonathan
403.288.8855 ext. 229

Shamsha Damji

E-mail Shamsha
403.288.8855 ext. 226

Ailsa McGurk

E-mail Ailsa
403.288.8855 ext. 222

Janice M. Elmquist

E-mail Janice
403.288.8855 ext. 235

Emily Smyth

E-mail Emily
403.288.8855 ext. 238

Christianne Murphy

E-mail Christianne
403.288.8855

SAFEGUARDING THE ESTATE ASSETS
- Verify that adequate insurance is in place to protect all real assets
- Obtain a vacancy permit for any real property
- Re-direct utility bills to executor
- Notify the banks and financial institutions where the deceased held accounts or had other dealings
- Open an estate account to deposit income and pay expenses (may need probate for this)
- Arrange for safekeeping of deceased’s valuables
- Arrange for the residence to be emptied and cleaned, locks to be changed, and if required, the property to be sold

OBTAIN GRANT OF PROBATE
- Instruct lawyer to draft Application, Affidavits and other necessary documents for submissions to Surrogate Court
- *Note: the Grant of Probate attests to the validity of the Will and confirms who is acting as executor

INVENTORY ESTATE ASSETS
- Search for assets, contact banks and investment firms, investigate past tax returns for asset information
- Initiate settlement of life insurance or group insurance policies and pension benefits
- Contact deceased’s employer to verify salary and/or benefits owing and to determine any health, pension, retiree, or death benefits to which the spouse or family may be entitled
- List contents of safe-deposit box
- Inspect real estate titles, leases, mortgages, etc.
- Cancel CPP and OAS benefits, Alberta Seniors Benefit, Alberta Health Care, if applicable
- Apply for and collect CPP death benefit
- Contact Canada Revenue Agency (CRA) to cancel GST and child tax benefits, if applicable
- Arrange for valuing assets – determine market value as a date of death and original purchase price for each asset for taxation purposes
- Arrange for Notice to Creditors
- Cancel credit card accounts and either return credit cards to issuers or destroy them
- Cancel social insurance card, passport, driver’s license, and health insurance card, if required
- Locate all original investment certificates, stocks, bonds, property deeds, etc.
- Identify, value and record estate assets as the date of death
- Investigate all debts owed by the deceased

ADMINISTER ESTATE
- Receive Grant of Probate or Administration
- Close out bank accounts and place funds in estate account
- Close out safety deposit box
- Distribute specific bequests/personal belongings to respective beneficiaries according to the terms of the Will – arrange for sale if advisable
- Register securities and bonds in Executor’s name; determine whether such should be held, sold or transferred to beneficiaries
- Obtain transmission of estate real property into Executor’s name – sell or manage property as required
- Submit necessary claims for insurance and annuities payable to estate
- Determine validity of creditor claims and discharge estate debts where and when appropriate
- Review the suitability of investments held in the estate and recommend assets to be sold to meet cash requirements
- Invest any surplus cash until estate is finalized, selecting from allowable investments
- Complete documentation and arrange to transfer employment, health, pension and retiree benefits
- Pay all debts and settle all legitimate claims prior to final distribution of assets, obtaining receipts for any payments made

TAXES
- T1 Terminal tax return to be filed April 30 of the year following death or 6 months following the date of death, whichever date is later
- Obtain copies of prior tax returns (3 years) filed by the deceased
- File any outstanding returns from previous years if not yet filed
- File any necessary U.S. or foreign tax returns
- Ascertain tax liability of estate – do this prior to initial distribution
- Determine if an RRSP contribution should be made
- Pay all income taxes owing
- Arrange for preparation of T3-Estate tax return if necessary
- Review notice of assessment to confirm all tax liabilities have been settled
- Obtain Tax Clearance Certificate from the Canada Revenue Agency once the Notice of Assessment(s) are received, confirming that all tax liabilities have been settled
- Complete a final tax return for the estate as well as for the deceased’s business if necessary

DISTRIBUTE ESTATE
- Begin distributing assets to beneficiaries according to the terms of the Will once it has been probated and once you have ensured that there are sufficient funds to pay outstanding debts and taxes of the deceased
- Establish any testamentary trusts
- Prepare accounting of all assets, liabilities, expenses and distribution of assets for all of the beneficiaries
- Prepare a statement of expenses (and compensation, if any) as executor
- Obtain Releases from beneficiaries upon final distribution of estate
- Complete sale of assets and transfer or titles
- Complete distribution of specific bequests (personal belongings) to respective beneficiaries according to the terms of the Will, obtaining receipts
- Advise beneficiaries to consult with a tax advisor to ensure the most tax-advantageous treatment of their inheritance
- Arrange for final distribution of remaining assets, obtaining receipts from each beneficiary
- Advise the bank in writing to close the estate account once the estate is settled
- Have each adult beneficiary approve the accounting and sign a release form

SERVICES

Wills

There are many tools to help you effectively plan your estate and one of the most important is your will. Properly drafted and up-to-date, a will ensures an orderly and efficient distribution of your estate.

Probate & Estate

As an executor, you are responsible for settling an estate according to the deceased’s final wishes as expressed in the Will and according to provincial law.

Power of Attorney

Managing your property and finances can be difficult, especially during times of infirmity or incapacity. A proper power of attorney document can appoint a person in advance to make these decisions on your behalf.

Personal Directives

In the event that you are incapable of making personal and health care decisions on your own, you can appoint a person in advance to make these crucial decisions on your behalf.

Guardians & Trustees

In situations where there is no plan for incapacity, it may be necessary to apply to the Court for an order of guardianship and trusteeship.

Contentious Estates

There are times when the administration of an estate or power of attorney does not go as planned. Executors, beneficiaries, and other interested parties may need guidance to resolve conflicts and, when required, navigate through the Court process.