Executor Missed the Probate Deadline in Alberta? What Now

Many people assume an executor must finish probate within a set time, and they worry when months pass with nothing happening. Whether anything has actually gone wrong depends on what the estate needs and what has been done.

This article explains the standard Alberta uses for timing, the reasons an estate may properly take longer, and the options if an executor is simply not moving. It is general information, and a lawyer can confirm how it applies to your estate.

This article covers the law of Alberta.

Is there a firm deadline?

A personal representative must distribute the estate as soon as practicable. The Estate Administration Act sets no fixed distribution deadline. So there is no single date after which an estate is automatically late for distribution.

Whether a particular delay is a problem depends on the facts. If you are worried about a specific time limit for applying for a grant, a lawyer can confirm what applies to your estate.

Delays that are often proper

A representative may distribute after complying with the Act and Rules on notice to claimants, looking only at claims they have notice of. They are not liable for claims they had no notice of at the date of distribution, although claimants can still pursue the recipients. Distribution is therefore properly delayed until the claimant-notice steps are done.

• If the representative contests a claim and the claimant does not apply within 2 months of notice of the contest, the claim is barred, so contested claims can hold things up.
• A family maintenance and support application must be commenced within 6 months after the grant of probate or administration is issued, so a cautious executor may wait before final distributions.
• When applying for a grant, the applicant must serve the application and a notice of family rights on certain people, and no grant issues until this is done unless the person could not be found after reasonable inquiry.
• Where minors or represented adults are involved, the application cannot proceed until those parties are represented or have said they will not be.

What delay can cost

A representative must act with the care, diligence and skill of a person of ordinary prudence. A representative with professional skill, such as a trust company or lawyer-executor, must apply that higher degree of skill when acting in that capacity. Unexplained delay can be raised as a failure to meet those standards.

If the Court is satisfied a representative has failed to perform a duty or core task, it may order them to perform it, impose conditions, remove them, revoke a grant or make any other order it considers appropriate. The Court can choose a lesser remedy than removal, so removal is not the automatic result of a failure. Whether delay has caused a loss, and who bears it, depends on the facts and is worth discussing with a lawyer.

How to move things forward

Government guidance suggests first trying to resolve concerns by discussion. If that fails, you or your lawyer may apply to the Court. If the representative is unsure how to proceed, they can apply to the Court for advice or direction, and acting on that direction is deemed to discharge their duty on that matter. That protection does not apply where the direction was obtained by fraud, wilful concealment or misrepresentation.

Beneficiaries cannot, by agreement among themselves, replace a grant-holding executor. A change needs the executor's renunciation or resignation as the court permits, or a court order. Where an executor is removed, the Court may issue a grant to the Public Trustee or another person in special circumstances.

What to do next

• Find out whether a grant has been applied for and whether any notices have gone out.
• Ask the executor in writing for a status update and a timeline.
• Ask whether any claims, family notices or minor beneficiaries explain the wait.
• Keep copies of all correspondence.
• Speak with a lawyer before applying to court or giving up the role.

Frequently asked questions