Making a Will – What happens when I pass away?

Common questions about the administration of wills

What are my personal representative’s duties and is there anything she or he cannot do?

Your personal representative is responsible for settling your affairs after your death.

The Estate Administration Act sets out the personal representative’s duties as falling under four main categories:

  • identifying the estate’s assets and liabilities;
  • administering and managing the estate;
  • paying the debts of the estate; and
  • distributing and accounting for the administration of the estate.

The Act further sets out the core tasks of the personal representative.

In your will, you can identify what you want your personal representative to do. You can also list anything that you do not wish him or her to do.

However, you cannot prevent your personal representative from doing something that is required by law. For example, you cannot state that your personal representative should not pay your outstanding debts.

In addition, your personal representative is governed by the provisions of the Alberta Trustee Act, which places certain restrictions on his or her actions. For example, if your personal representative needs to invest your assets for a while, he or she can only invest in a specific list of allowable investments.

Your personal representative must give notice to beneficiaries and family members as set out in the Act. In addition, if probate is obtained, your personal representative may have to report to the court.

What is probate and what is involved in that?

Probate is a legal procedure where the court determines the will’s validity and confirms the personal representative’s appointment.

In Alberta, this is the Court of Queen’s Bench, Surrogate Matters. A personal representative must apply to the Court to probate a will. There is a range of court fees charged for probate – the larger the estate, the higher the fee.

For example, as of the June of 2015, the fees were:

ESTATE VALUE COURT FEES
Up to $10,000 $35
Over $10,000 but not more than $25,000 $135
Over $25,000 but not more than $125,000 $275
Over $125,000 but not more than $250,000 $400
Over $250,000 $525

What happens to property located outside of Alberta?

If property, such as a vacation house in British Columbia, is located outside of Alberta your personal representative may have to file for probate in that jurisdiction. This is especially true for real property (land). It is best to check the laws of that other jurisdiction.

What happens if the person I appoint as my personal representative cannot act for me for some reason, or wants to quit?

You can avoid this problem by naming one or more people as your substitute personal representative(s). The substitute can act if your personal representative dies,
or is unable or unwilling to assume the role.

If, after you have died, your personal representative who had previously accepted the appointment is unable or unwilling to continue the role, she or he must apply to the court for a discharge.

That said, if all of the possible personal representatives named in your will are unable or unwilling to act, a court will appoint someone.

Can a will be challenged?

Yes. Common causes of a challenge include claims that that testator was unduly influenced, and the claims of dependents under the Wills and Succession Act. Only a court has the final say about whether a will is valid.

In order to minimize the chances of your will being challenged, talk to your family members, your beneficiaries, and anyone who may be entitled to a share of the estate and explain your plans. This may prevent problems later.

Is a photocopy of the will valid?

A photocopy of a will is rarely acceptable to parties such as banks, investment companies and the court. Most parties require at least a notarized copy of the will. An application for a grant of probate will require your original will. If you write a new will, copies of previous wills should be destroyed and replaced, so as to avoid Confusion.

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. October 2015.
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