What is probate? Plus 15 other will and probate questions answered

1. What is probate?

Simply put, probate is a legal approval process that confirms: 

• the validity of a will, and
•  appointment of an executor. 

Most estates will need probate if there are assets that need to be distributed. The more complicated the will, the more likely probate is required. 

2. What’s an executor?

An executor is someone who can: 

• carry out the terms of your will and 
• look after your assets after your death. 

“Assets” refers to anything you own that has financial value like: 

• a real estate property, 
• a car, and 
• any savings or investment accounts. 

If you’re writing a will, you’ll have to name an executor. It could be a family member, a lawyer or someone you trust. 

3. What if you don’t have a will? Or your executor can’t do the job?

Then the courts must appoint an estate administrator – and the costs will be similar to probate (3-7% of the total value of the estate).

But having a will makes it easier on your family or beneficiaries during an already difficult time. 

4. Who does what in the process of probate?

Let’s assume we’re talking about your own will:

• You don’t have to do anything. Probate is a process that affects your will after your death.
• Your executor. Remember, this is the person responsible for carrying out the terms of your will, paying your debts, working through family disputes, etc. After your death, your executor must secure the assets of your estate. They’ll then determine whether your estate needs to go through probate. Even if it’s not a legal requirement, your executor may apply for probate. This helps ensure that they can rely on your will as being the final version of your written instructions.

5. Why does an executor have to apply for probate?

Each province has its own rules. But generally speaking, your executor must apply to your province’s probate court for approval of your will if you:

• died in debt,* 
• had bank accounts, registered investments or life insurance policies without a named beneficiary. (And if the financial institution won’t pay out the funds without probate), or
• owned property that you’re not passing directly to your spouse or common-law partner through joint ownership.

(*Please note: If the estate is essentially bankrupt, then the executor usually doesn’t apply for probate. Why? Because there’s no money to cover the cost.)

6. How does an executor apply for probate?

It’s a good idea for your executor to start by: 

• talking to a lawyer, and 
• searching online for “How do I apply for probate in (province name).” 

Why? Because each province’s rules, approval body, process and costs differ.

Look for your province’s probate court, or Surrogate Court, in some places. This is the official body that grants probate approval. Some call it “letters probate”, but a different name may apply in your province. If there’s no will or executor, the court grants “letters of administration.”

7. What could happen if your executor doesn’t apply for letters probate?

Without probate, your executor can hit a wall.

Imagine if your executor contacts one of these institutions with a non-probated will in hand:

• your bank,
• a mutual fund company,
• your pension plan provider, or
• the land title office.

Your executor then asks them to hand over your money or register a transfer of property title. Those institutions will want proof that:

• you’ve died,
• the will is valid and is the final version,
• your executor is the person named in your will, and
• no one will sue them if anyone contests the will.

Consider this: Why would a bank risk a lawsuit for handing out your money to the wrong person? They’re not likely to take a risk by assuming your non-probated will is valid. Instead, the bank may refuse to release your money until it gets the legal protection. And, they can only get this legal protection from approval of your will by the provincial probate court. That’s the big upside to probate.

8. How much are probate fees in Canada?

Provincial probate costs and fee structures vary across Canada. Depending on your province of residence, you can be charged probate fees as a:

• flat rate, or
• percentage of your assets, not your income.

Generally speaking, probate can cost 3-7% of the value of the estate.

9. Are probate fees considered as income tax?

Probate fees (or “Estate Administration Tax” in Ontario) and income tax are not the same thing. In fact, probate fees aren’t deductible by the estate for income tax purposes. And your estate may need to pay income tax on assets that don’t even need to go through probate.

10. How can I avoid doubling my probate costs?

Do you want to leave your entire estate to your spouse or common-law partner? In such cases, it’s smart to insert a common disaster clause in your will. Without it, here’s what could happen: If you or your spouse died, your assets would go through probate twice:

1. Once for your will, and 
2. Once for your spouse’s will, thus paying probate twice. 

To avoid that, wills with a common disaster clause can help. How? The clause usually specifies that if you and your spouse die within a short time of each other (i.e. within 30 days), your estate would instead go to contingent beneficiaries rather than to your spouse. For example, your contingent beneficiaries may be your children or another family member. 

11. How does probate affect joint accounts or assets?

Many people believe that assets jointly held by two people don’t need to go through probate if one were to die. There’s some truth to that. For example, joint accounts usually transfer directly to the surviving account holder. But check the wording of your account agreement, to confirm. It’s wise to have a lawyer or accountant reliably sort through the fine print of your situation.

Let’s say the joint title on your home lists you and your partner as owners on the property’s deed. You may register this joint title in a way that includes right of survivorship. That means that if one partner dies:

• the surviving partner gets full title to the home, and 
• it doesn’t have to go through probate. 

This scenario can make a lot of sense, both now and after one of you dies.

Do you only want joint title on an asset now so your estate can avoid probate costs later? If so, beware. Putting another person’s name on your assets can open the door to serious problems while you’re still alive. Consider these two examples:

• You jointly own a house that’s debt-free. But if your joint owner has unpaid debts, then their creditors may make a claim against your home.
• You have some money you’d like your child to get when you die. So, you decide to open a saving or investment account now, in both your names. But consider two risks:  
  • If the bank only needs one signature on withdrawals, your child could clean out your account. 
  • If your child splits up with a spouse, their ex might claim a share of your money. 

And, what if you don’t document that the joint owner must get the proceeds of the account for their own use after your death? Then another heir may claim that you made the arrangement strictly to help you manage your finances. In this case, the account may form part of your estate, which could then make it subject to probate.

This can all be overwhelming to figure out on your own. But the good news is that you don’t have to. An advisor can help or connect you with someone who specializes in estate planning. If you need an advisor, you can find a Sun Life advisor near you. 

12. Is there probate for life insurance or registered accounts with named beneficiaries?

There’s no probate for life insurance or registered accounts with named beneficiaries such as: 

• registered retirement savings plans (RRSPs) or 
• tax-free savings accounts (TFSAs). 

Luckily, these assets usually pass to those beneficiaries outside the estate and don’t go through probate.

It’s best to name a secondary or contingent beneficiary as well. This helps in case your primary beneficiary dies before you do. 

To review your own beneficiaries, or better understand your life insurance options, talk to your advisor. It’s a best practice to review your beneficiaries with your advisor annually to help avoid these common mistakes.

13. Can I have multiple wills?

In some provinces, you can have more than one will. 

For example, a common estate planning practice in Ontario involves using multiple wills:

• The primary will covers assets that require probate (known in Ontario as a “Certificate of Appointment of Estate Trustee”) in order to be administered.
• The secondary will deals with assets that do not require probate. (i.e. shares in privately-held corporations or personal belongings).

This practice of separating assets under two or more different wills generally has the effect of reducing Estate Administration Tax (“EAT”, formerly and still sometimes referred to as “probate fees”). How? It allows for one’s estate to pay the EAT only on assets that require probate.

To ensure this is done properly, you’ll need to speak with a lawyer who specializes in estate planning.

14. What about cash gifts?

Instead of using a probated will to distribute all your money, you can give some cash gifts while you’re alive. In Canada, there are normally no tax consequences to a non-spouse recipient who’s over the age of 18. 

But there may be one notable exception. Let’s say you give a cash gift to someone while you owed money to the CRA. In that case, the CRA may reach out to the recipient with questions. They may even seize or take the cash gift back from them.

15. Can I use a trust to avoid probate?

It’s possible. You can set up a trust to own your assets so they won’t go through probate. Talk to your lawyer about the costs of creating a trust. 

But it’s important to note that avoiding probate fees shouldn’t be your only reason for following a particular strategy. Sometimes, the cost of probate can be much lower than the cost of avoiding it. For example, in Alberta (a province that charges low probate fees) the most you’ll pay for probate is $400.

16. Are probated wills private or public?

Once probate is granted, your will becomes a public document, available for anyone to view. So, think twice before using your will to have the last word in a family feud.