When a person passes away in Canada, their estate will typically go through a process known as probate. Among other things, the probate process confirms that the person’s will is legally valid before it’s carried out.
If you named a beneficiary in the will of someone who has passed away, learning more about the probate process may help you minimize its potentially lengthy and costly impact on your inheritance.
What is probate?
An important part of estate planning is writing will. Probate is the process by which that will is legally validated via a court of law in accordance with the specific regulations of a Canadian province or territory. Basically, probate demonstrates that a will is real and meets the requirements to be legally binding.
The probate process is also intended to officially authorize the will’s executor to administer the estate. Upon successful completion of probate, the executor is given a legal document called a “grant of probate,” or a “grant of administration” that confirms the will is valid and can thus be administered.
What is the purpose of probate?
The main purpose of probate is to ensure that a written will is valid and is in fact the deceased’s final will before any of the deceased’s assets are distributed.
It’s possible that the deceased person may have written more than one will, for example, or that there’s an ongoing financial dispute with a former spouse or business partner. By not releasing any assets until a will has been probated, financial institutions can ensure certain assets are given to the right person and thus protect themselves from any claims of wrongdoing or fraud.
How probate works
Depending on where you live in Canada, most of the assets listed in a will must go through probate. The process confirms that the assets should be included in the deceased’s estate, don’t actually belong to someone else, and don’t already have a predetermined beneficiary. For example, assets that must be probated typically include:
- Bank accounts and investments.
- Real estate.
- Vehicles, like cars or boats.
Items that likely won’t need to go through probate include assets with joint ownership, such as, a home or a joint bank account shared with a spouse, and assets like insurance policies with a predesignated beneficiary.
Steps involved in the probate process
- The executor is in charge of overseeing the probate process and is required to submit the will along with other documents such as, a list of assets and liabilities to a probate court to get an official grant of probate.
- If there is no will, a court will select someone to administer the estate and oversee the probate process; this process may vary depending on your province or territory.
- The court will then confirm that there are no other wills and that the information about the estate’s assets and liabilities is accurate.
- During the probate process, family members or other concerned parties can raise any disputes or challenge the will.
- Once the court confirms that the will is legitimate and there are no outstanding disputes or legal challenges to the will, it will issue a grant of probate.
- Once probate is granted, the executor can begin to administer the will.
The cost of going through probate varies dramatically based on what territory or province you live in and can range from $0 to as much as 1.7% of the estate’s value. Many jurisdictions offer a significant discount or charge no fees for smaller estates.
In Ontario, for example, estates with a value of less than $1,000 are not subject to probate fees, whereas in British Columbia, estates under $25,000 pay no fees. In Quebec, there are no probate fees for wills officially prepared by a notary or lawyer.
How to reduce probate fees
Probate fees can reduce the assets available for distribution by an estate, depending on its size and the jurisdiction. However, there are a few ways to reduce probate fees.
Some options include:
- Designate beneficiaries on registered accounts like tax-free savings accounts (TFSAs) or registered retirement savings plans (RRSPs), as well as pensions and insurance policies. Naming your beneficiaries on these accounts means they don’t need to go through the probate process.
- Hold property and bank accounts jointly with a spouse or other trusted partner, so that person will inherit the accounts directly without the need for probate.
Because the rules of probate change based on where you live in Canada, it’s a good idea to consult an estate lawyer to determine ways to potentially reduce probate fees and minimize estate tax implications.
Most written wills have to go through probate in Canada. However, there are some exceptions, such as if the estate is very small or all the assets are held jointly, such as by a married couple. There are also some exceptions for members of a First Nation. Because rules vary significantly throughout Canada, it’s best to consult an expert such as an estate lawyer to be certain whether your will would be subject to probate.
The time it takes for a will to go through probate in Canada depends on a variety of factors, like the complexity of the estate and the province or territory in which probate is taking place. It can take as little as a few weeks or longer than a year to complete probate.
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