Can an Executor Act Before Probate Is Granted in Alberta?

Someone close to you has died and the will names you as the person in charge. Probate has not been granted yet, and you are wondering what you can safely do in the meantime. Some tasks cannot wait, such as the funeral, while others are better left until the court has issued its grant.

In Alberta, the Estate Administration Act sets out the rules. This article explains what a named personal representative can generally do before a grant, what notices are required, and what can go wrong. Every estate is different, so a lawyer can confirm how this applies to yours.

This article covers the law of Alberta.

What authority you have before a grant

Alberta uses the term personal representative for the person who deals with an estate. Subject to the will and the law, a personal representative may take possession and control of estate property and do what the deceased could have done. Real property also vests in the personal representative.

The core job is to identify the estate's assets and liabilities, manage the estate, pay its debts and obligations, and then distribute and account for the administration. You must act honestly and in good faith, follow the will, use ordinary prudence and distribute the estate as soon as practicable. If a personal representative has a professional skill level above ordinary prudence, such as a trust company, that higher skill must be exercised when acting professionally.

A grant of probate confirms the executor named in a will. Acting before it issues is possible, but it comes with duties and risks, covered below.

Funeral arrangements and death certificates

The estate pays burial and funeral expenses, and the personal representative or executor is responsible for arranging them. The Funeral Services Act and Cemeteries Act govern control of human remains and funeral arrangements. The Funeral Services General Regulations also set a priority list of who has authority over funeral arrangements.

If the estate does not have the funds for the funeral, the funeral home can apply to the Alberta government for assistance.

Death certificates must be ordered through an Alberta registry agent. An executor or personal representative named in the will can apply with a copy of the will attached. Next of kin, a joint tenant, a lawyer for an eligible person, a funeral home representative and the Public Trustee can also apply. If you are outside Alberta, you can mail the forms through Registry Connect or AMA instead of attending a registry agent, but applications sent directly to Vital Statistics are not processed.

Notice you must give if you act without a grant

A personal representative named in a will who acts without a grant must give notice to beneficiaries, family members, spouses, adult interdependent partners, the Public Trustee and others. The beneficiary notice must identify the deceased and the personal representative, describe the gift, and state that gifts are subject to debts.

• Find the original will and confirm you are named in it. Alberta has no will registry, so it may be at home, in a safety deposit box or with a lawyer.
• List the beneficiaries, family members, spouses and adult interdependent partners who must be told.
• Include the Public Trustee in your notices.
• Make sure each beneficiary notice names the deceased and you, describes the gift and says gifts are subject to debts.
• Keep copies of everything you send.

Risks of acting early

Before a grant issues, anyone may apply to restrain dealing with or intermeddling in a deceased's property. If someone is unhappy with how you are handling things, this is one route they can take.

A caveat against a grant lasts 3 months unless the Court orders otherwise. If the court finds you have not given required notice or performed your duties, it may, on application, order compliance, impose conditions, remove you as personal representative, revoke a grant or make other orders. You can also be compelled to discharge the duties and liabilities that the Act, the will, other law or the Court impose.

When a grant becomes necessary and what happens after

After a grant issues, only the personal representative named in it may act for the estate until the grant is revoked or the representative is discharged. Where there are co-personal representatives, they must act unanimously unless the will or the Court orders otherwise.

If a grant is later revoked, good-faith payments and conveyances made under it before revocation remain valid.

What to do next

If you are unsure whether to wait for a grant, you can ask the court for help. A personal representative may apply for advice or direction on any question about managing or administering the estate, and acting on that direction discharges the duty, unless it was obtained by fraud, concealment or misrepresentation. A personal representative or a person interested in the estate may also apply to the court for directions at any time.

• Keep estate property safe and avoid distributing anything early.
• Send the required notices and keep proof of them.
• Arrange the funeral and order death certificates as needed.
• Talk to a lawyer before taking major steps, especially if anyone disputes the will or objects to your role.

Frequently asked questions