In Alberta, the Executor of a Will must step into the shoes of the deceased to file a lawsuit under the Survival of Actions Act. This separate legal claim seeks compensation for the specific pain, suffering, and financial losses the victim experienced between the time of the accident and their passing.
Being named as the Executor (or Personal Representative) of an estate is a heavy responsibility, but that burden multiplies significantly when the deceased lost their life due to someone else’s negligence. 📁 In Edmonton, wrongful death litigation is actually divided into two distinct legal avenues. While surviving family members claim bereavement and dependency losses under the Fatal Accidents Act, the Executor is legally required to manage a completely separate claim on behalf of the deceased person’s estate.
This estate claim is governed by Alberta’s Survival of Actions Act. The core principle of this law is that the legal rights of a victim do not disappear when they pass away. If your loved one survived for a period of time after a tragic car accident on the Anthony Henday or a severe medical malpractice incident at a local hospital, they likely endured severe pain, incurred medical bills, and lost wages before their death. As the Executor, it is your legal duty to hire a law firm to recover those specific damages for the estate.
Step-by-Step Process in Edmonton
Managing an estate claim requires careful coordination between a personal injury lawyer and an estate planning lawyer. The process involves local Edmonton courts and strict adherence to provincial probate rules.
Step 1: Probating the Will and Confirming Executor Status
Before you can officially file a lawsuit on behalf of the estate, you must have the legal authority to do so. 🏢 This usually requires applying for a Grant of Probate at the Surrogate Division of the Court of King’s Bench in Edmonton. This legal document formally recognizes the Will as valid and confirms you as the rightful Executor. If the person died without a Will (intestate), you must apply for a Grant of Administration.
Step 2: Gathering Estate Documentation
Once your authority is confirmed, your role is to help your injury lawyer gather specific evidence related to the days or months prior to the death. You will need to order ambulance bills from Alberta Health Services, gather receipts for out-of-pocket medical devices, and collect the deceased’s recent pay stubs or tax returns from the CRA to prove the income they lost while fighting for their life in the hospital.
Step 3: Filing the Estate Claim and Distributing Funds
Your lawyer will officially file the Statement of Claim under the Survival of Actions Act alongside the family’s Fatal Accidents Act claim. 💰 When the insurance company eventually pays the settlement, the funds for the estate claim do not go directly to the grieving family members. Instead, they are deposited into the estate’s bank account, used to pay off any final debts of the deceased, and then distributed strictly according to the instructions laid out in the Will.
How Much Does it Cost in Edmonton?
An Executor is generally not expected to pay legal fees out of their own personal pocket. The costs are managed through the estate or by the personal injury law firm.
- Lawyer Fees: Most wrongful death lawyers in Edmonton work on a contingency basis, taking around 30% to 35% of the final settlement. The estate pays nothing upfront.
- Probate Fees: Applying for Probate in Alberta has standard court filing fees. Currently, the maximum court fee for probating an estate of any size over $250,000 is capped at a very reasonable $525 CAD.
- Funeral Expenses: Under the law, the at-fault party’s insurance can be forced to reimburse reasonable funeral and burial costs, which often range from $8,000 to $15,000 CAD.
| Type of Claim | Governing Law in Alberta | Who Receives the Compensation? |
|---|---|---|
| Estate Claim | Survival of Actions Act | The Estate (distributed via the Will) |
| Family Dependency Claim | Fatal Accidents Act | Spouse, Children, and Parents directly |
How Long Does the Process Take?
Managing both the probate process and a wrongful death lawsuit requires patience. 📅 Obtaining the Grant of Probate from the Edmonton courts currently takes about 3 to 6 months due to administrative backlogs. Once the estate is formalized and the civil lawsuit is filed, negotiating a fair settlement with the at-fault party’s insurance company generally takes an additional 2 to 4 years.
Frequently Asked Questions (FAQ)
What if the victim died instantly in the accident?
If the death was instantaneous, the estate typically cannot claim damages for pain and suffering under the Survival of Actions Act, because the victim did not survive long enough to experience them. However, the Executor can still claim for funeral expenses and property damage (e.g., the totaled vehicle).
Do estate settlements face taxes from the CRA?
In Canada, personal injury and wrongful death settlements are generally tax-free. The compensation paid into the estate for pain and suffering is not considered taxable income by the Canada Revenue Agency. However, you should always consult an accountant for the final estate tax return.
Can the Executor be held personally liable for lawsuit costs?
As long as the Executor acts reasonably, honestly, and follows the advice of their hired law firm, they are generally protected from personal financial liability. All legal costs and disbursements are paid out of the estate’s assets or the lawsuit settlement itself.
What if family members disagree with the Executor’s decisions?
The Executor has the ultimate legal authority to direct the estate’s lawsuit. However, because the family members have their own separate claims under the Fatal Accidents Act, they often work collaboratively with the Executor using the same law firm to ensure everyone’s interests are protected.
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