Wills and Probate

Probate is a legal procedure wherein the surrogate court determines the validity of your will and confirms the appointment of the executor.

In Alberta the cost is low in comparison to other provinces except Quebec, where there are no fees. In Alberta, fees are charged pursuant to the Court Fee Schedule on the net value of the estate as shown:-

$10,000 and under........................$25.00

over $10,000 to $25,000..................$100.00

over $25,000 to $125,000.................$200.00

over $125,000 to $250,000................$300.00

over $250,000.................................$400.00

If your executor hires a law firm the cost will be considerably more. In March of 1995, the Surrogate Rules Committee suggested the following fee guidelines for legal services based on the gross value of the estate:-

up to $150,000.00.............Base fee of $2,250.00 plus 0.5 %

over $150,000.00..............Base fee of $2,250.00 plus 1%

Compensation for non-core legal services to be on a 'quantum merit' basis :- as much as deserved or as much as was promised to be paid for the work done.

For more information on fees and forms, please visit:-

Alberta Courts ( Court of Queen's Bench) www.albertacourts.ab.ca/CourtofQueensBench/ FrequentlyAskedQuestions/tabid/95/Default.aspx

The procedure is necessary when certain third parties, called upon to transfer estate property to the executor, require assurance that the executor is the valid representative of the estate.

Financial institutions, the land registry office and other advisers need to know that the will is valid and that the deceased had the mental capacity to make the final decisions regarding the distribution of his or her estate.

The Land Titles Office absolutely requires it to transfer title unless property is jointly held with right of survivor-ship.

Executor’s Liability

It protects the person who is acting as the estate trustee or executor. The courts generally apply the “reasonable and prudent person” criterion which means that if an executor acts with the same care and diligence expected of a reasonable and prudent person in the conduct of their own affairs, then the executor will not be held liable for any losses suffered by the estate.

However, that may not be the case if the executor did not have authority to act in the first place.

If the legality of the will is successfully challenged after the executor has proceeded without benefit of probate, the executor may be personally liable for any losses suffered by the estate.

Four ways to avoid Fees

l. Gifts Prior to Death

You can give your assets away prior to your death. These assets will no longer be part of your estate. When you gift an asset, you give up legal control of this asset. It is deemed disposed of and you may be subject to capital gains tax.

2. Joint Tenancy

Joint tenancy passes automatically by right of survivor-ship to the surviving joint owner. Since the property is effectively no longer owned by the deceased, it is therefore not considered part of the estate and is not subject to probate fees.

3.Name Beneficiaries

When you designate a beneficiary for your life insurance policies, RRSPS, RRIFs and pensions, the proceeds are paid directly to the named beneficiary. The proceeds will not form part of your estate and again are not subject to fees.

Fees are only payable if the proceeds are payable to the estate,or if the named beneficiary dies before you. In such a case, you may want to designate an alternate beneficiary.

4. Property transferred to a Trust

A trust can be created to hold property on your behalf, with provisions providing for the distribution of the property after your death. Since this property is owned by a trust it will be not considered part of your estate.

Trusts are expensive to set up and administer and may not be the better solution in avoiding probate fees.

Think carefully when choosing your executor and about all aspects of estate planning, not just probate fees.

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