In Alberta, the Surrogate Rules set out the rules, procedures, and forms governing surrogate work, which is overseen by a Surrogate Court, also known as a Probate Court in some jurisdictions. The court 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.)
Alberta does not have a separate Surrogate Court. The Court of Queen's Bench oversees wills and estates. For the most part, the handling of estates involves submitting documents to the Surrogate Clerk's office. If issues related to an estate cannot be resolved by submitting documents, a court appearance is needed.
The Surrogate Rules are intended to provide the answers to questions related to wills and estates. When they do not, the Queen's Bench Rules of Court will apply.
Surrogate Court Rules
The Surrogate Rules are divided into five parts. Part 1 covers Non-contentious Matters, which are as follows:
- Application for Grant
- Notice required
- Personal Representatives
- Duties of the Clerk
- Administration of the Estate
- Making, Altering, or Revoking of a Will by a Minor
Part 2 covers Contentious Matters, such as proving wills, proving death, and claims on an estate. Part 3 deals with Accounting and Part 5, the Transitional, Repeal, and Commencement section, covers legal and personal representative compensation, court fees, and forms.
Using the Surrogate Rules
The Surrogate Rules in Alberta detail exactly what must be done in specific situations. For example, if both witnesses to a will are dead or cannot give an affidavit for any reason, the rules state that:
“the applicant may establish proof that the formalities required for a will to be valid were observed by an affidavit
- in Form NC 9 attesting to the authenticity of the signature of the deceased, or
- from any person
- who did not sign as a witness,
- who was present during the signing of the will, and
- who can attest to the circumstances.”
Surrogate Rules and Notices
The Surrogate Rules were changed in 2015 to require executors who are not applying for a Grant of Probate to notify beneficiaries and spouses—just as executors who apply for a Grant of Probate must do. These notices advise beneficiaries that they are entitled to receive an inheritance. Spouses are advised that they have the right to inherit and are entitled to make a claim for more of the estate if they are not the sole beneficiary.
The executor must prepare the notices and send them by registered mail. A copy of the will must accompany each notice. The personal representative should keep copies of the notices and accompanying cover letters.
Executors have the choice of whether to advertise for creditors and claimants by publishing a notice. According to the Surrogate Rules, those who choose to publish a notice must do it once if the estate is $100,000 or less and twice, separated by not less than five days, if the estate is worth more. Notices must be published in a newspaper in the area where the deceased lived or where much of the assets can be found.
Surrogate Court Forms Alberta
As stated previously, the Court of Queen's Bench handles surrogate matters in Alberta. A copy of the Surrogate Rules and Forms can be viewed or downloaded from the Alberta Queen's Printer.
Your estate lawyer will help you navigate the Surrogate Rules so you can ensure you are in compliance as you manage and distribute an estate.