Probate is a necessary step for many estates. Although designed to provide protection to the institutions holding assets on behalf of the deceased, it can also provide guidance for the personal representative (the “executor”) and the potential beneficiaries. For many executors, probate is a challenging step. But with the right professionals assisting you, it can be a welcomed process that sets a clear path for the estate administration.

What is probate?

Probate is a process in which the court confirms the validity of the last will and testament of the deceased. The court reviews the original will, accompanying documents, and particulars of the deceased. If the court is satisfied, it issues a document called the Grant of Probate which reaffirms the authority of the appointed executor to collect, sell, or transfer the deceased’s assets in accordance with the will.

When is probate required?

Probate is usually only required when an estate holds a sufficient balance at any one financial institution (typically at least $50,000) or if the estate holds real estate. In these situations, financial institutions and The Land Titles Office will request probate before releasing control of the assets to the executor.

Why do I need probate?

Probate reduces risk for the institutions holding or registering assets on behalf of the deceased. It provides assurance that the will provided is the valid will of the deceased and the assets can be transferred to the named executor without concern that a more recent will exists.

How much does probate cost?

The cost of probate varies immensely from province to province. It ranges from $0 in Manitoba to up to 1.5% in Ontario – which comes to $15,000 for a $1MM estate. In Alberta, probate is a flat fee of up to $525. So while the cost of probate is a valid concern for many, it really depends on where you are domiciled when you pass away.

Can I avoid the need for probate?

There are certain strategies that you can implement during life to eliminate the need for probate or reduce the number of assets that are subject to probate. These strategies typically involve making assets joint or settling trusts, but come with other risks and costs that would need to be carefully considered with the help of tax and legal professionals.

Do I need a lawyer to apply for probate?

You can apply for probate on your own by filling out the necessary surrogate forms and submitting the application to the court. We suggest, however, you retain a lawyer or a trust company to assist you. Applying for the grant of probate can be an overwhelming process. You need to gather the required information on the deceased, including a detailed list of assets, information on previous or current spouses/partners, and details on the deceased’s dependents. You also need to provide notice to the beneficiaries listed under the will, as well as parties that may have an interest in the estate. And, if you make any errors or omissions on your application, it will be rejected and you will be required to resubmit it again for review.

Did you know?

When a will is probated it becomes a matter of public record. Only under very specific situations, such as a serious threat to safety, can the will be sealed (i.e. protected). Even in the well-known case of murder victims, Barry and Honey Sherman, the trustees lost their argument over concerns of safety and privacy and the court ultimately ruled that the estate documents are to remain a public record.

To find out more about how probate will affect your estate, contact us or speak with your advisors.

Guardian Estate Company provides independent will and estate planning services, and is Canada’s first brokerage for estate solutions provided by trust companies and other fiduciaries.

The above is for informational purposes only. It is not intended to be legal or financial advice. We accept no liability for any losses arising from use of the above information. We recommend you speak to your lawyer to obtain specific advice or guidance regarding your unique situation.