Surrogate practice in Alberta was significantly transformed on June 15, 2022, with the activation of the Surrogate Digital Service. The Surrogate Digital Service enables practitioners to prepare, submit and serve grant applications electronically. Its effects have been transformative. Since activation, over 4,200 grant applications have been received through the Service and over 3,800 grants have been issued. On average, grant applications received through the Service take about two weeks to process. Compared to paper-based grant applications—where processing often takes months—the benefits of the Service are obvious.
The Surrogate Digital Service was developed with the aim of being more than just a portal to which scanned application documents would be uploaded. Information about the deceased, beneficiaries, and potential claimants is input directly into the Service, together with a scanned copy of the deceased’s will. Applicants are invited to review the application before certifying the accuracy of the contents. Certification—which takes the place of swearing or affirming—need not occur in the presence of a commissioner or notary and can therefore be completed by the applicant at his or her convenience.
The certified application is forwarded to the Court where it undergoes preliminary review by a clerk, who checks for major deficiencies such as the omission of the will or the proof of death document. Applications that are fatally flawed are returned for correction. Applications that pass muster are forwarded electronically to all persons requiring notification (e.g. beneficiaries). Notice recipients are invited to acknowledge receipt, and upon so doing, service is complete. Persons who do not acknowledge receipt of their notice must be served using a conventional method of service (personal service or recorded mail).
Fully served applications are subjected to a more detailed review by a clerk, whose comments are passed on to the reviewing Justice electronically—no printing, photocopying or inter-office mail delivery required. Any concerns the reviewing Justice may have about the content of the application can be put to the applicant’s counsel via the Service, who can in turn use the Service to respond directly to the reviewing Justice. Once satisfied with the application, the reviewing Justice can issue the grant with any directions, limitations, and express authorizations that he or she considers necessary. Once issued, grants are available for immediate download from the Service. Also, the Service immediately notifies all beneficiaries and potential claimants that the grant has been issued.
Not all grant applications can be processed using the Surrogate Digital Service, although the capabilities of the Service have been expanded since its launch last year. Initially, the Service could not be used if one or more of the named executors renounced their appointment or if it was necessary to serve notice of the grant application on the Public Trustee (necessary if a beneficiary or a potential claimant is a minor). Also, the Service was initially unavailable to corporate executors. The Service now accommodates applications in all these situations. Still in development are improvements which will permit applications to be received in situations where none of the applicants ordinarily reside in Alberta (situations where bonding requirements are engaged) and eventually, in situations where a person has died intestate.
Presently, only lawyers in Alberta can use the Service. In fact, since September 13, 2022, Alberta lawyers have been mandated to use the Service for grant applications the Service is capable of processing. In other words, lawyers cannot submit a paper-based grant application if the application could have been submitted electronically using the Service. Lawyers submitting a paper-based grant application are currently required to complete and submit a GA1 Submission Eligibility Form with their application.
The Surrogate Digital Service is not currently available for use by self-represented litigants, although at some point in the future this could change.
The Surrogate Digital Service benefits all users, including the Court. For personal representatives, a promptly issued grant means they are able to deal with the deceased’s affairs that require immediate attention, such as tax filings or the sale of a property or business. For beneficiaries, a promptly issued grant means they can receive their inheritance sooner. The Court benefits from the Service by having fewer documents to handle and archive. Specifically, the only document received by the Court in an application received through the Service is the deceased’s original will, which is retained by the Court in a central repository.
Improvements are being made continuously to the Surrogate Digital Service to meet the challenges of real-world application. Rare and unforeseen circumstances have presented a variety of challenges for the development team, but as new issues are identified, solutions are developed to improve the capabilities of the Service. Users are kept apprised of new features through Release Notes posted to Users’ dashboards and the continuously updated User Guide that is available for download from the Service.
In less than a year, the Surrogate Digital Service has already impacted thousands of people. To date, over 15,000 individuals—beneficiaries and potential claimants—have received notifications through the Service. As the capabilities of the Service continue to expand, the future impact will be greater still. There may well come a day in the future when estate practitioners will wonder how we ever practiced without it.
David Koski is a partner at The Estate House, a boutique law firm in Edmonton dedicated to Wills and Estates. The Estate House has been serving clients since 2004.