Top 3 Will Probate Mistakes for Alberta Executors

You may be a whiz at organization, record-keeping, and logistics which helped get you most of the way through the estate administration process; however, there are some common pitfalls that tend to catch even the best executors off guard.

Probating a Will in Alberta is an important step in ensuring the testator’s intentions are respected, that the will is legally valid, and that those persons with an interest in the estate have an opportunity to protect their own interest before the estate is executed. That said, it can also be frustrating for those who just want to “get on with it” and have some closure. There are procedural pitfalls along the way that can make the process even more frustrating and time consuming, they include:

1. Trying to do it alone – many executors are weary of the expenses associated with professional advice in the estate administration process, and while this is certainly a consideration, executors should be weighing the costs and benefits of foregoing such advice. I have seen many clients approach us only when their probate application is rejected for a preventable error. Now the client has significantly prolonged the probate process by having to re-prepare the probate application and has now been forced to seek legal advice at a point when the matter is now more complicated than it would have been at the start.Key Takeaway: If the estate is of a reasonable value or level of complexity, it is highly recommended that, as executor, you take the time to obtain legal advice from an estate lawyer throughout the estate administration and probate process.
2. Failure to notify – failing to slow down enough to identify and notify all those who may have an interest in the estate distribution – in many cases this is obvious but in others it is far from it, particularly when there may be estranged family members or dependents.Key Takeaway: Take the time to ensure that sufficient notices of death are published to make potential claimants aware and ensure that you can properly effect notice of the various steps in the probate process. When in doubt as to whether to give notice to a person, seek the necessary legal advice before taking any steps.
3. Failure to Appoint a Guardian for Incapacitated Beneficiaries – this is a common mistake among executors where there is an incapacitated beneficiary or dependent. Many probate applications are rejected on this basis, and just when you thought you had reached the end, you are told that you must ensure that the incapacitated person has a legal guardian who can assess her rights and entitlements on her behalf. This may significantly delay the process as someone must then apply to be the person’s legal guardian or you must apply to the Office of the Public Guardian and Trustee to have a guardian appointed. And yes, you will likely need legal advice and direction at this point.Key Takeaway: This goes back to the advice from number 1 above in that, with proper legal advice up front, you can appreciate the subtleties in the estate administration process. While you may weigh the incapacitated person’s living expenses versus his or her share of the estate proceeds and determine that it is more than fair, the Court is concerned with procedural fairness in ensuring that the incapacitated person has sufficient notice, advice, and opportunity respecting his or her interest in the estate.

At Prowse, our wills and estates lawyers are experienced in advising executors and administrators on the legal requirements and best practices involved in the will probate process in Alberta. If you or someone you know is either starting the estate administration process or you are unsure of next steps, please contact us at your earliest convenience to find out how we can help you get through what is already an emotionally draining experience.