Probate is the legal process that must take place in order to validate a person’s last will and testament. This validation process, which involves the provincial courts, must take place for any person who dies. However, the process is usually much quicker and simpler if there is a will in place.
To help you understand how probate factors into estate planning, it’s best to consider how probate works and how it factors into the estate planning process.
Why is probate necessary?
Every estate must go through probate. That means even if you write a will and have it signed by two independent witnesses, your estate must still go through the process of probate. That’s because probate is the legal process of validating a will or, if no will is present, of determining the legally accurate distribution of a deceased person’s estate.
Probate is an integral part of estate planning as it must be completed by the courts before any other action can take place. For instance, probate must be finalized before a bank will release the savings or chequing account of a now-deceased client to the next of kin. I
What happens during probate?
If you have a will, the person responsible for all of your documentation – otherwise known as your executor – will submit the will and any other documentation to the courts. The courts will then initiate the probate process — the legal process of validating that the will is authentic, valid and that the wishes contained within the will are enforceable (and not contested).
At this point, the will can be challenged or contested for a number of different reasons, including last-minute changes, unexpected removal of family members, or a general disagreement between family members. This is when the probate process can drag out and, unfortunately, become expensive as lawyers argue each client’s point of view. The courts will then review all provided documents, the laws regarding provincial family law, as well as any other documentation or evidence submitted throughout this process.
Keep in mind, just because a person leaves a will does not mean that everything in the will stand up in court.
What happens after the will is accepted?
Once the court has accepted a will, it determines if the person you’ve named as an executor is still willing and eligible to serve in this administrative role. They might have passed away, lost their mental capacity, went to prison, or don’t want to take on the task anymore. If this is the case, the court will turn to the alternative executor named in a previous will or a close family member.
When the court approves the executor, they will receive a “Grant of Administration,” or “Grant of Letters Probate.” Other names for this decision are a “Certificate of Appointment of Estate Trust With, or Without a Will.” This is a court-issued legal document that officially appoints a person as an Executor — the person officially tasked with following through with all requests set out in the will.
The executor can then go to the bank or other financial institution with their court-issued Grant of Administration and request the bank to release the assets to the estate administrator.
What fees come with probate?
Every province regulates probate fees differently. Some areas, like Quebec, have no probate fees. In contrast, Alberta, Northwest Territories, and Nunavut have a flat fee of $400 for estates more than $250,000 and other provinces like Ontario charge a variable probate fee of 0.5% for the first $50,000 and 1.5% fee for estates over $50,000.
You can ask a legal expert to give you an estimate of what your inheritors might pay for the estate they will receive and how you can distribute your estate to minimize their fees and costs.
Is there ever a time in which you do not require probate?
There are some assets that are excluded from probate, such as:
- Jointly held assets with a right of survivorship (such as a marital home or a joint savings account);
- Life insurance policies with a named beneficiary;
- Accounts with a Pay on Death (“POD”) or Transfer on Death (“TOD”) designation;
- Assets you’ve placed in a trust;
- Life insurance profits paid to a beneficiary.
Each province has different regulations, so be sure to check with a professional in your city to confirm probate requirements.
When it comes to probate, remember these tips:
- Every estate must go through probate, however, a will makes this process far simpler (and that eliminates the time to finalize probate and any legal costs associated with the process);
- A lawyer is helpful, but not mandatory for the probate process;
- Probates can take anywhere from three months to one year (or longer) to complete;
- Probated wills are public documents, and as such, anyone can request to view them;
- Canada has no inheritance tax, but the recipient of the estate may have to pay capital gains tax for some assets as well as probate fees (also known as estate administration tax).
If you do not have a will, you are missing out on the opportunity of having your last wishes heard. There will be no executor to initiate the probate process, and the distribution of your estate will be left to the court and according to your province’s laws when it comes to estate distribution.
Writing a will takes no longer than an hour to do, which is time worth spending to ensure your estate is left in safe hands. A small or big estate is worthy of having a will if only to provide loved ones with comfort and peace after suffering a loss.