Although commonly referred to as probate law, it would be more accurate to say wills and estates law, or surrogate law. “Probate law” in Alberta is governed by the Wills and Succession Act. The act came into effect on February 1, 2012 and consolidates four previous acts:
- Wills Act
- Intestate Succession Act
- Survivorship Act
- Dependents Relief Act
The act also has changes to the:
- Matrimonial Property Act
- Administration of Estates Act
- Family Law Act
- Surrogate Rules
The Wills and Succession Act is based on three fundamental principles (from the Government of Alberta's website):
- “A person is free to transfer his or her property to others upon death and any interference with a person's wishes in this regard must be justified.
- If a person does not formally indicate how they want his or her property distributed upon death, it is presumed that the person wants it to go to family members.
- A person's freedom to transfer property on death is subject to satisfying the person's legal and family support obligations.”
The Wills and Succession Act gives rise to the Surrogate Rules, which fall under the jurisdiction of the Surrogate office of the Court of Queen's Bench.
The Surrogate Rules cover all matters relating to probate and the administration of an estate, including submitting the application, required forms, proof of a will, accounting for the estate, and the passing of accounts.
A copy of the Surrogate Rules and Forms can be viewed or downloaded from the Alberta Queen's Printer.
The Surrogate Court, also known as a Probate Court in some jurisdictions, has jurisdiction over the estates of people who are deceased.
The Surrogate Court and Rules are used to confirm whether or not wills are legally valid, validate the appointment of personal representatives, approve personal representatives' accounts, and handle disputes over wills and estates.
(Note: the term “personal representative” is the current legal term used to refer to an executor/executrix, administrator/administratix, and judicial trustee.)
Estate Administration Act
A key part of probate law is the Estate Administration Act of Alberta, which came into effect on June 1, 2015, along with new Surrogate Rules. The Estate Administration Act governs the tasks that must be performed relating to estate administration.
The Estate Administration Act includes plain language so personal representatives can understand their duties, core tasks, notice requirements, and responsibilities when administering an estate. It was designed to make it easier to use and understand the law.
The act applies to all types of personal representative, including those named in a will. It also applies whether or not a grant is given by the court. With or without a Grant of Probate or Grant of Administration, the personal representative has the same duties, core tasks, notice requirements, and responsibilities.
The Bottom Line
Understanding a bit about the Wills and Succession Act, Surrogate Court and Rules, and Estate Administration Act will give you a general understanding of probate law in Alberta. Your estate lawyer should have a solid understanding of all legislation related to probate law and be able to answer any specific questions you may have about how the law applies to your unique situation.