A few years ago, I lost both of my parents. It was heartbreaking and tough on the entire family. We were dealing with two sudden losses, first when my Mother passed away, and then shortly thereafter, when we lost my Dad. It put a massive emotional strain on everyone in our family, which in retrospect, was to be expected considering the circumstance. My brother and I had to stay strong, we knew we had to also take care of the financial aspects – but we had no idea how complicated it would be. This is when we first heard of probate.
WHAT IS PROBATE?
A will is validated through a process called probate. This is to ensure that the last living testament of the deceased is accurate and can be used to manage all financial aspects listed in the will.
A court approved probate will enable banks, insurance companies, and any other financial institutions, to comply with the will, and help the executor close out the estate.
WHAT HAPPENS IN PROBATE?
If the inevitable happens, your assigned executor takes your will to a probate court and submits it for probate. At this point the courts will approve and validate your will as the true last will and testament. It’s here where they also resolve any issues and also deal with any concerns regarding the legitimacy of the will.
It’s also during probate where a will can be challenged. For instance if the deceased was not in full possession of their mental capacities before they passed away and they changed their will in this state, family members can rightfully contest the will. After review, the court has the authority to overrule the most recent change, and approve the previous will as the true last will and testament .
Once your will has been accepted, the courts determine if your executor is still able to serve in this role. Once the courts have accepted the will and the appointment of your executor, then your executor will be given a “Grant of Administration”. This is also called a “Grant of Letters Probate”, or a “Certificate of Appointment of Estate Trust With or Without a Will”. While nomenclature varies from province to province, this is the court issued document that officially appoints your executor as the estate administrator.
Does every will in Canada have to go through probate?
In practice, almost all Canadian wills are probated. An exception applies when the entire estate is held jointly, and the assets are passing to the joint asset holder, such as in the case of a married couple. Usually, husbands and wives hold one or two joint bank accounts, and a jointly owned house. If the first partner dies and leaves the entire estate to the surviving partner, then probate can be avoided.
In situations such as the one above, the banks and financial institutions have no risk exposure when transferring jointly held assets to the surviving partner of a deceased joint account holder.
HOW CAN PROBATE FEES BE REDUCED?
Probate is the process that grants the legal authority for your executor to act in carrying out the terms in your will. So if you have assets that are to be passed onto another person upon your demise, then your Estate must be probated in Canada. This is the same whether or not you have a will.
Probate fees are calculated based on the size of your Estate. It is therefore important to understand what is part of your Estate, and what is not.
Your estate consists of all the things that you own by yourself, At the time of your passing, such as your car, bank accounts, clothes, jewelry, etc…simply put; if you own it, it is now part of your Estate.
But joint accounts with a right of survivorship, and financial accounts that already have beneficiary designations, are not part of your estate. So life insurance policies, or registered savings vehicles (like RRSPs or TFSAs) are not part of your estate, if they have named beneficiaries.
If you have not named a beneficiary on your life insurance policy, or you have simply named your “estate” as the beneficiary, then it becomes part of your estate and is subject to probate fees.
But you can reduce the size of your probate fees, by reducing the size of your estate. This can be done by putting your assets into registered accounts like RRSPs, holding accounts jointly with a right to survivorship, or simply gifting your assets to beneficiaries while you are alive. (You may have read about “Transfer on Death” or “Pay on Death” bank accounts. These are available in the US; but they are not offered in Canada).
HOW LONG DOES PROBATE TAKE?
While it typically takes about three months for an application for probate to be seen by the courts, the entire probate process can take anything up to a year, or even longer if there are challenges to the will.
Be aware that in Ontario, the executor must submit an “Estate Information Return” within 90 days of them officially being appointed executor. This return must include a detailed inventory of everything owned by the deceased and the complete breakdown of the value of the estate.
The content on the ReadyWhen Platform is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind.