Why Probate Gets Rejected or Delayed in Alberta Courts

You applied for a grant of probate in Alberta and the application has come back, or nothing seems to be happening. That is stressful when you are an executor with bills to manage and beneficiaries asking questions. The good news is that most holdups have a recognizable cause.

This article walks through the usual reasons: problems with the will and its proof, missing or late notices, who has to be involved, objections, and security. It explains how each is generally fixed. Every estate is different, so a lawyer can confirm what applies to yours.

This article covers the law of Alberta.

Start by understanding what the court is checking

A grant of probate is a request asking the Court to confirm that the person named in the will has authority to administer the estate. Surrogate matters are heard in the Court of King's Bench, and a straightforward application can be made online through the Surrogate Digital Service (SDS) or on paper using the GA forms starting with GA1.

Before a grant issues, the clerk must complete a court-records search unless the court orders otherwise. The Court must also be satisfied that the required notices have been given before a grant is issued. A gap in any of these areas is what usually causes a rejection or a stall.

The SDS Clerk Review Guidelines list the main items the clerk checks, and they are meant to help applicants avoid delays. Reading them before you resubmit is worthwhile. No statute sets how long a grant takes, so a slow file is not always a rejected one.

Problems with the will and the forms

Form GA1 is always required on a grant application, and other forms such as GA8 to GA14 are required depending on the circumstances. Missing a form that your situation calls for is a common reason for a file being sent back.

• Original will: the original will and any original codicils must be attached to the application, and any document incorporated by reference into the will must also be filed.
• Proof of signing: a witness proves the signing formalities by a GA8 affidavit with the original will as an exhibit.
• Holograph will or missing witness: a GA9 affidavit of handwriting proves the deceased's handwriting, and if both witnesses are dead or unable to swear, a GA9 or another qualified person's affidavit may be used.
• Will not in English or French: a translation affidavit in Form GA10 is needed.
• Old forms: applications filed on or after June 15, 2022 use the GA series, so older materials with NC forms are outdated.

Current practice for lodging the original will with the court can change, so confirm the present requirement with the court or a lawyer before you send it.

Notices that were missed, late or incomplete

Notice problems are among the most frequent causes of delay. The notice of application must be served with the GA1 and a GA2 inventory on residuary beneficiaries, intestacy beneficiaries, and the persons listed in section 11 of the Estate Administration Act. A grant must not be issued unless the Court is satisfied these notice requirements have been met.

If someone who must be served cannot be found, the Court may dispense with service after reasonable inquiry. Where a represented adult is a beneficiary, you serve the trustee, not the adult. An application must not proceed until an attorney or trustee of a represented adult, or the Public Trustee where notice is required, is represented on the application or has indicated it will not be.

Objections, caveats and other holdups

A person may file a caveat against the issue of a grant. While it is in effect, no further proceedings may be taken on the application, and a caveat lasts 3 months from filing unless it is discharged, withdrawn, or the Court orders otherwise. This can delay a grant even if the application itself is complete.

Security can also be an issue. No bond is needed if the personal representative lives in Alberta, or if one of two or more does. A non-resident personal representative must provide a bond or other court-approved security, in an amount equal to the gross value of the deceased's Alberta property, from an insurer licensed for fidelity insurance, though a non-resident may apply to dispense with, reduce or substitute security.

• Wrong court location: the application must be filed at the judicial centre nearest by road to where the deceased lived on the date of death, unless the court allows otherwise; if the deceased lived outside Alberta, it may be filed at the judicial centre closest to the deceased's Alberta property.
• Too many applicants: a grant of administration generally cannot go to more than 3 people at once unless the court orders otherwise.
• Executor who will not act: a named executor can renounce using Form GA11, and a renouncing representative loses authority under the will.

What to do next

Work through the points below, then resubmit or ask for guidance. If a dispute or caveat is involved, speak with a lawyer, because the fix may be a court process and not just a missing form.

• Read the court's feedback or rejection reasons line by line.
• Confirm the original will, any codicils and any incorporated documents are attached.
• Check that GA8, GA9 or GA10 is included where your will needs it.
• List everyone who must be served and confirm the GA5 affidavit of service was filed on time.
• Check whether a minor or represented adult is a beneficiary, and whether the Public Trustee needs notice.
• Search for any caveat on the file.
• Confirm you filed at the correct judicial centre and addressed any bond question.
• Do not distribute estate assets until your authority is clear.

Frequently asked questions