Is a Grant of Probate Necessary?

In Alberta, a Grant of Probate is the Surrogate Court's certification that the Will submitted by the Executor meets the formal requirements of a Will as set out in the Wills and Succession Act and is the last Will executed by the deceased. The Grant of Probate gives the Executor the authority to deal with the deceased's property and administer/distribute the deceased's Estate in accordance with the Will. In theory, the Executor's authority to act is found in the Will but as a practical matter, the financial institutions that hold the deceased's investments require that a Grant of Probate be issued before releasing or transferring assets to the Executor. The Land Titles Office will not give effect to any transfers of land, or discharge any mortgages, caveats, liens, etc., registered against title to the deceased's property unless presented with a certified copy of the Grant of Probate - even if the financial value of the deceased's interest in property is nominal. This is to ensure they are not held liable for disbursing funds or transferring property to someone named as the Executor of a Will that is fraudulent, defective, or was revoked by a subsequent Will.

In some situations, for example when there is no Will, the Will is invalid or does not deal with all of the deceased's property, certificates similar to the Grant of Probate may be issued. These include Grants of Administration, Administration with Will Annexed, Administration of Unadministered Property, Administration until Will is Found, Administration for Preservation of Property, Administration for the Purpose of Litigation, Administration when the validity of a Will is in Question, Administration During the Minority, Absence, or Mental Incapacity of the Personal Representative(s), Supplemental Probate of Administration or a Re-sealed Grant from another jurisdiction.

It is not always necessary to obtain a Grant of Probate (or other Grants). This arises most often when a couple has made an estate plan in which their personal assets are held in joint names and real property is held in joint tenancy. Joint ownership carries a "right of survivorship" - the surviving account holder or land owner automatically acquires full ownership of the jointly held assets. Typically the institution holding the asset will remove the name of the deceased upon receiving a death certificate issued by Alberta Vital Statistics or a Funeral Director's Statement of Death. The Land Titles Office will remove the name of the deceased from title upon receipt of an Affidavit of Surviving Joint Tenant, to which a death certificate of Funeral Director's Statement of Death must be attached.