When to Probating a Will -- Estate Planning

What is “Probating a Will’ and

Are All Wills Probated in Alberta?

By Courtney Aarbo Fuldauer LLP, Lawyers

Probating a will is a procedure that occurs after a persons death where the Executor named in the will submits the will to the Court for review and approval.

Once a ‘Probate Application’ is submitted a Judge will review the will to determine its validity, and other information provided to the Court regarding the deceased, the family, the beneficiaries, and the assets/debts of the Estate. Beneficiaries will also be notified about the application.

Normally a Judge will then grant a ‘Probate Order’ approving the will and the Executor’s appointment. In Calgary at present the Court usually takes about 2 months to grant an order, once the correct and complete paperwork is filed at Court.

Most, but not all Wills need to be probated. If the deceased owned any interests in land that were not in ‘joint tenancy’ with someone else, so that on death the land interest goes into the estate, a probate must occur. Land Titles will not transfer a land interest in an estate until there is a certified copy of Probate Order registered.

If there are any bank accounts or investments of the deceased that were not being held in a ‘joint account’, or for which a named beneficiary or the investment would on death automatically receive the investment (an RRSP named beneficiary), then the will must be probated before the bank or investment company will allow the Executor to access the funds.

The rule of thumb really is that all wills need to be submitted to the Court for a Probate Application, unless really nothing of significant value goes into the estate on death because the deceased was a pauper, or the deceased’s assets were all transferred to people outside of the will through joint ownership or naming of beneficiaries on investment documents.

We do recommend that when a will needs to be ‘probated’, the Executor retain a lawyer. At Courtney Aarbo we will assist in providing necessary advise to the Executor on how to administer the Estate, we will prepare, serve, and file the Probate Application, transfer land interests once the Probate Order arrives, assist with finalizing the Estate, and be available for questions from Executors and Beneficiaries as the Estate is administered. The approximate fee cost for this work on a normal estate is between $2,500.00 and $4,000.00.

For more information contact Courtney Aarbo Barristers & Solicitors at 3^rd Floor 1131 Kensington Road N.W., Calgary Alberta, T2N 3P4 or info@courtneyaarbo.ca or phone 403-571-5120.

Gary C. Courtney

Courtney Aarbo Barristers & Solicitors

www.courtneyaarbo.ca  

- The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal advise, please contact a lawyer.

Why do I need a will? Estate Planning Inforation from a Lawyer

What if I Die Without a Will?

By Courtney Aarbo Fuldauer LLP, Lawyers

A will is the basic legally binding document that we all should have prepared. Of course there are many occasions when people die without a will. I am often asked ‘what happens then?’

In Alberta a person dying without a will dies ‘intestate’. When this happens Part 3 of the Wills and Succession Act of Alberta governs what happens to your estate. I will attempt a brief summary of the distribution scheme imposed by the legislation;

Section  60       If you die learning a spouse or adult interdependent partner (‘common law spouse’) and no children, your entire estate goes to the spouse or adult interdependent partner;

Section  61       If you die leaving a spouse or adult interdependent partner and a child or children where your surviving spouse is also the parent, your spouse or adult interdependent partner gets your entire estate. If the spouse is not the parent of the child or children then the spouse or adult interdependent partner gets 50% and the child/children share the other 50%

Section  63       If you still have a spouse but you were separated at least 2 years or had a court order or agreement that is a final property split, then the spouse is deemed to have predeceased you and gets nothing.

Section  66       If you have no spouse or adult interdependent partner, but have children (or grandchildren) at the time of death, the estate will be split equally amongst your children or grandchildren, with a share also being split amongst grandchildren from a pre-deceasing child.

Section  67       If you have no spouse, adult interdependent partner, children, or  grandchildren, your estate goes first to your parents or parent of surviving, but if not it goes to your siblings.

Basically the act continues in its distribution scheme down the line of relatives to a

limited extent. In the event there are no relatives close enough to qualify then eventually the government of Alberta would become the beneficiary of last resort.

Of course many issues are not and really cannot be covered off by the above default legislation. Some of the more obvious problems when there is no will include:

1)      No appointment of an Executor as occurs in the will to look after the funeral and process the estate debts, assets and bequests. Instead an ‘Administrator’ must be appointed by the Courts;

2)      You will have no say over funeral arrangements, although usually a funeral home will ask your next of kin for direction;

3)      There will be no bequests of money or special keep sakes to chosen people or charities;

4)      There will be no ability to set up life estates for people in things like your home;

5)      Children and grandchildren will take at 18 years of age rather then at an older more mature age.

6)      You will not be able to set up a trust fund for young beneficiaries, for example your children, where money is held until a certain age by a trusted person and used for education and necessaries of life, until the child is old enough to manage the money wisely (say 25);

7)      While a young beneficiary is under 18 the government of Alberta will manage his or her money;

8)      If you have no surviving spouse, children or grandchildren, while the estate will likely go to your more extended family, nothing will go to your predeceasing spouses ‘blood’ relatives;

9)      You will not have a chance to name a guardian to look after your children who are under 18;

10)  The legal costs of the estate will likely be higher than if you had a will.

Hopefully after reviewing the above information you will agree that having a will prepared should be a priority. The fee for a couple doing a standard will is not prohibitive usually about $700.00 for the two, not each. The cost of a single will is normally $500.00.

For more information contact Courtney Aarbo Fuldauer LLP, Lawyers at 3^rd Floor 1131 Kensington Road N.W., Calgary Alberta, T2N 3P4 or info@courtneyaarbo.ca or phone 403-571-5120.

Courtney Aarbo Fuldauer LLP, 

www.courtneyaarbo.ca  

- The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal advise, please contact a lawyer.

Human Rights and Employment Law Update - Vriend Restrospective

VRIEND v. ALBERTA

 15^th Anniversary of a Human Rights Milestone in

Constitutional Law and Employment Law

Darryl A. Aarbo, Barrister and Solicitor

Calgary, Alberta

This year represents the 15^th anniversary of a landmark decision in the area of human rights law, employment law and constitutional law. In 1998 the Supreme Court of Canada came out with a unanimous decision in Vriend v. Alberta [1998] 1 S.C.R. 493. This decision has had a huge effect on these three areas of the law over the last 15 years. It is a decision taught throughout the world and studied by students internationally, not just by lawyers but by constitutional experts and human rights advocates.

At first blush the decision looks like it is a gay rights case dealing with sexual orientation. Nevertheless, it is far more than that, although it is without question an important case for the LGBTQ community. 

Mr. Vriend worked as a laboratory coordinator at a college in Alberta. He held a full-time position and all of his evaluations were extremely positive. There were no blemishes on his employment record whatsoever. The college was a Christian college. It initially had no policy on sexual orientation but when it learned of Mr. Vriend’s sexual orientation then it came out with the policy and insisted upon his resignation. When he declined to resign, he was terminated. The sole reason given was his sexual orientation. The college was explicit that it was terminating him because of his sexual orientation.

Mr. Vriend attempted to file a complaint with the Alberta Human Rights Commission on the grounds that his employer had discriminated against him because of his sexual orientation, but the commission advised him that he could not make a complaint under the legislation because it did not include sexual orientation as a protected ground. 

Mr. Vriend sued the provincial government of Alberta because its human rights legislation did not cover sexual orientation. He did not sue the college or file a complaint against the college, but he went after the government because its legislation omitted sexual orientation in its protection.  This is the essential nature of the dispute and the basis for its complexity and why it had such a massive impact on constitutional law.

To put this case into its proper context for younger people or people living outside of the province of Alberta, the government of the province of Alberta at the time was a socially conservative group of individuals relative to other governments. Further, it was a big issue of the government at the time that unelected Judges were imposing their will on an elected legislative assembly.  Thus, when presented with an issue of gay rights and the possibility of the Courts imposing its will upon the government, the government opposed this litigation vehemently.

The case became a regular news item.  There were rallies and protests. There were fundraisers and organizations set up on both sides of the argument. It was extremely polarizing and contentious throughout Alberta and Canada. Interveners joined in the arguments on both sides. It was the modern Canadian equivalent of Edwards v. Canada (the “Persons Case”), the 1928 Canadian Supreme Court of Canada decision that found women were “persons”  and therefore eligible to sit in the Canadian Senate.  It could also be compared to Brown v. Board of Education, the landmark 1954 decision for the civil rights movement in the United States.  The Vriend case became a rallying point for human rights advocates on one side and socially conservative persons opposed to judicial intervention on the other.

Why was it such an important?  First, many argued that the Court was trying to regulate private activity. A misunderstanding of many people is that the Charter of Rights and Freedoms regulates the day-to-day lives of private citizens in Canada.  It does not.  The Constitution of Canada, which the Charter of Rights and Freedoms is a part of the, only regulates the various levels of governments in Canada. Constitutions throughout the world seek to regulate government activity, not private activity. In this instance many argued that what was being proposed was actually regulating private activity because Mr. Vriend was a private citizen who worked for a private college (although receiving government funding).  The Court found that it was not regulating private activity because it was dealing with government legislation. The twist here was that the government legislation in question did regulate private activity because it was human rights legislation.  Human rights legislation does govern acceptable behaviour of private citizens. Nevertheless, the decision only applied to the legislation, which was the activity of government in its regulation of private activity.

Second, and more important, the reason this case was so controversial at the time was that the Alberta’s human rights legislation omitted any reference to sexual orientation. Further, the Canadian Charter of Rights and Freedoms, a part of the Canadian Constitution, also omitted any explicit reference to sexual orientation. In its decision the Supreme Court of Canada read-in sexual orientation as a prohibited ground of discrimination into Alberta’s human right legislation and to do that it interpreted the Constitution of Canada as including protection for sexual orientation even though it was not explicitly written down by the drafters.  It expanded the scope of the Constitution itself by its own decision. It did so based upon well-established precedent and constitutional law and there were decisions leading up to this case that laid the foundation for what the court did, but it was considered by many to be an extraordinary example of judicial activism.

It is a monumental decision because it is an example of the old maxim that the constitution is a “living tree” or a “living document”.  The Courts interpreted the Constitution to protect a group of individuals who were being discriminated against at the time when the general population was only becoming more favorable to the idea of protecting their rights. Just as the Persons Case and the Brown decision were controversial in their time, this decision was also very controversial.  History judges the Persons case and the Brown case positively as progression towards equality for all and the Vriend decision is a long line of decisions where the Court’s protecting minority group not being protected by elected representatives. Further, the single most important aspect of this decision is that it leaves open the protection for groups that governments or the majority of people may not consider worthy of protection today.

Darryl Aarbo

darrylaarbo@courtneyaarbo.ca