How A Lawyer Helps With An Estate
By: Brent C. Buss (B.A. (Adv.), LL.B.)
A lawyer plays a crucial role in probating an estate, helping to ensure that the process runs smoothly, efficiently, and in compliance with provincial law. Here’s an overview of how a lawyer can help and what specific tasks they typically handle:
1. Assess Whether Probate Is Required
- Determine if the estate actually needs to go through probate (some small or jointly held estates may not).
- Review how assets are owned — for example, jointly held property or assets with designated beneficiaries might bypass probate.
2. Prepare and File Court Documents
- Identify potential problems that need to be addressed before a court filing can begin.
- Draft and file the Application for Grant of Probate (if there is a will) or Grant of Administration (if there isn’t).
- Prepare supporting documents like:
- The original will and affidavits of execution
- Affidavit of assets and liabilities
- Court bonds
- Notices to beneficiaries and next of kin
- Submit the application to the Court of King’s Bench (Probate Division)
3. Identify and Value Estate Assets
- Help identify all the deceased’s assets and debts.
- Work with appraisers, accountants, and financial institutions to determine accurate values.
- Prepare an inventory of the estate for the court and beneficiaries.
4. Secure and Manage Estate Property
- Advise the executor on how to safeguard property and accounts.
- Assist in transferring title to estate assets into the estate’s name.
- Help obtain clearance certificates from the Canada Revenue Agency (CRA) before distributing assets.
5. Notify and Deal With Beneficiaries and Creditors
- Ensure that all beneficiaries are properly notified and understand their entitlements.
- Publish notice to creditors (if required) to protect the executor from later claims.
- Review and handle creditor claims against the estate.
6. Settle Debts and Taxes
- Work with your accountant to file final income tax returns and any estate tax filings.
- Determine what taxes must be paid and when.
- Obtain a tax clearance certificate from CRA to confirm all taxes are settled.
7. Distribute the Estate
- Prepare the statement of accounts showing all receipts and disbursements.
- Advise the executor on obtaining releases from beneficiaries before distribution.
- Oversee the transfer of remaining assets to beneficiaries in accordance with the will or intestacy laws.
8. Minimize Legal Risk and Handling Disputes
- Protect the executor from personal liability by ensuring all legal requirements are met.
- Handle disputes or challenges to the will.
- Advise on complex issues such as dependent relief claims, joint assets, or business ownership.
9. Report to the Court or Apply for Release of a Bond
- Determine if the Estate must pass accounts (get approval of how the estate was handled) with the court.
- Apply for the release of a bond.
10. Specialized Advice
- Interpret unclear or outdated provisions in the will.
- Deal with cross-border assets or beneficiaries.
- Coordinate with accountants and financial planners for estate efficiency.