Probate can have an impact on the value of your estate, because in some provinces it can be quite a costly process. So, how does probate work? What is probate’s purpose? When is probate necessary, what happens if you don’t apply for probate and which assets can be kept out of the probate process?
What is probate and when is it necessary?
Probate is the legal process of validating a will and verifying who will act as the estate’s executor, as well as carrying out the wishes laid out in that will. As to when it’s necessary, this is a complicated question to answer in Canada because each province and territory has different probate legislation.
For example, in Quebec, if you have a notarial will, you wouldn’t need to go through the probate process. A notarial will is one drawn up by a notary (a licensed professional with the power to draft a will) and signed by a witness.
In other provinces, the need to go through probate varies considerably. In Ontario, for example, if the deceased person leaves property or financial assets that are held by a bank or other type of financial institution, probate will probably be necessary. Also, the larger and more complicated the estate is, the greater the likelihood that it will have to go through probate.
The situation is similar in B.C., where some banks will demand probate before releasing funds to the will’s executor, the key difference being they will ask for a document called a representation grant (or estate grant), which is equivalent to a certificate of appointment of estate trustee in Ontario.
In some cases, if the deceased had no assets in their estate (or, indeed had only debts) probate may not be necessary. If there is some dispute as to the validity of a will, then probate would usually be necessary. If someone dies without a will, a similar process to probate would be necessary; the deceased’s estate would be administered according to the province’s (or territory’s) intestate law.
How does probate work?
Firstly, the executor of the estate should talk to an estate lawyer to be certain that probate is necessary and for advice on how to obtain probate in that province or territory. The executor would then have to apply to the probate division of the superior court of the province or territory. In Ontario, for example, an executor would apply to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee.
The executor would need to provide the court with documents to support the application for probate. Depending on where you live, some of the documents required could include:
- Application form
- Court forms, such as affidavits (of the applicant, assets, liabilities, etc.)
- Certificate of appointment of trustee
- Certificate of wills search
- Original signed copy of the will
In many cases, executors should work with an estate lawyer to ensure they provide the court with all the necessary documents and help ensure a smooth probate process.
What can happen if you don’t apply for probate?
Without probate, some financial institutions may simply refuse to comply with the executor’s requests to transfer the deceased’s money or accounts. They may want proof that the deceased is indeed dead, that the will presented to them is authentic and the final one, and that the executor is the person named in the will.
Ultimately, financial institutions have to be careful so that they aren’t sued if anything goes wrong. A probated will with approval from the provincial court will give them the protection they need to release the deceased’s funds.
What is probate’s cost?
The costs for probate vary greatly, depending on your province or territory. In Manitoba, for example, there is no cost for probate, and in Quebec the fees are quite low (though the courts may charge a nominal processing fee). These provinces are at the lowest end, however, and some provinces charge a percentage of the value of the assets that require probate.
In B.C., for example, any estate valued under $25,000 would not have any probate charges, but the amount between $25,000-50,000 would have a charge of 0.6% of the estate’s value, and the amount above $50,000 would be charged 1.4% of the estate’s value. If the estate had $1 million worth of assets that were subject to probate, the fee would be $13,450.
In Ontario, there is no probate fee for the first $50,000 of an estate’s value. There is then a fee of 1.5% of the value of the estate above $50,000. If an estate had $1 million worth of assets subject to probate, the fee would be $14,250. Ontario and B.C. are at the upper end of probate fees (as is Nova Scotia), with other provinces and territories charging considerably less.
Which assets are not included in probate?
A number of assets that have individuals named as beneficiaries would not be part of probate (and therefore would not incur probate fees), including:
- Life insurance
- Registered Retirement Savings Plans (RRSPs)
- Tax-Free Savings Accounts (TFSAs)
- Registered Retirement Income Funds (RRIFs)
- Employer pension plans
Having said that, there are many intances where designating a beneficiary is not appropriate. Always speak to a professional before changing a beneficiary designation, as in some cases the probate fees will be negligible compared to the litigation costs that could occur if the distribution of the estate is not as anticipated. For example, if you designate multiple children as direct beneficiaries, and one of them then passes away, the children of the deceased child could be disinherited.
Also, the rules regarding the ability to designate beneficiaries are different in Quebec, and they are generally only available on insurance products.
There are other ways to exclude assets and property from probate. Certain assets that are owned jointly and those held in certain sorts of trusts may be exempt from probate and therefore not subject to probate fees. However, switching assets to joint ownership could bring about a whole new array of legal or tax issues that could be far costlier than probate fees. This is why comprehensive estate planning is essential.
Getting help dealing with probate
An estate plan that takes into account your final wishes (and which is integrated into your overall financial plan) can help ensure a smoother probate process.
Your IG advisor can turn to IG’s tax and estate planning team to provide advice on the most tax-efficient ways to prepare your will and transfer your assets. They can also advise you on ways to reduce probate fees, if appropriate, and the best ways to do that.
Given the complexities of probate, you should talk to your IG advisor to arrange a meeting to discuss your estate plan, before making any decisions. If you don’t have an IG advisor, you can find one here.
Written and published by IG Wealth Management as a general source of information only. Not intended as a solicitation to buy or sell specific investments, or to provide tax, legal or investment advice. Seek advice on your specific circumstances from an IG Wealth Management Consultant.