Article Licenses: CA, DL, unknown, unknown
Advisor Licenses:
Compliant content provided by Adviceon® Media for educational purposes only.
It is a significant job for the executor to probate a will. The original will must be submitted with an inventory listing the estate’s assets recorded at their fair market value to the court in the jurisdiction where the deceased last lived. There may be increased fees if a lawyer is retained to cross-examine the asset list or if the executor charges a percentage of the asset base to do the work.
Probate fees are paid from an estate to the provincial court. These fees are approximately .5% to 1.5% of the estate’s assets, depending on the size of the estate and the province. Provincial lawyers complete the necessary ‘letters of probate’ or ‘grant of probate document.’ In Ontario, they are now referred to as ‘the certificate of appointment of estate trustee with a will.’
Because probate is calculated on assets, regardless of liabilities, an estate with assets of $1 million and liabilities of $200,000 would pay probate on the entire million. In addition, if these same assets are transferred to your spouse, probate fees may be due again the second time around when these assets are transferred through his or her will. These fees are paid with after-tax dollars, as they are not deductible on the final income tax return. There is no law stating that a simple will and estate needs probating.
How can I minimize the need for estate probate?
There are a few tactics whereby you can reduce the need for an estate to be probated by the government:
Defer possible probate by holding assets jointly. Probate fees may be charged when that asset is transferred later through the will of the second spouse.
Establish a person as a beneficiary on your life insurance policies independent of the estate. This way, all monies pass to the heirs tax-free. If the estate needs probating, this portion of the assets will not be included in the estate, as the death benefit will flow directly to the heirs circumventing scrutiny. Life insurance strategies are excellent financial tools to circumvent probate on larger wealth transfers to heirs. Family wealth can be positioned to pass through life insurance policies, delivering tax-free benefits without probate. This method has frequently been used to transfer inter- generational estate wealth in the millions.
Name your beneficiaries on your RRSPs and RRIFs. Insurance companies’ products will allow you to sidestep probate in this way. To protect themselves, banks and trust companies will probably require probate or a letter of indemnity from the estate’s lawyer if the assets are significant. If your spouse is your beneficiary, consider a secondary beneficiary should your spouse die at the same time you do.
Consider setting up a spousal testamentary trust in your will to avoid double probate. When the second spouse dies, the assets can be distributed via the trust directives as opposed to a will.
With your spouse, set up mutually owned property as ‘joint tenants with rights of survivorship to transfer these assets automatically outside of the will.
Once the will has been probated (if necessary) and the executor confirmed, he or she could start transferring assets as directed by the will. Some assets can be transferred easily within a short period of time. Others have to wait until the estate expenses have been paid, including any final income taxes due to Canada Revenue Agency (CRA), after which they will issue a tax clearance certificate.
Note: The Estate Administration Tax (ETA) in Ontario, will replace some of the previous probate processes, and may add more complexity to the above scenarios. If your estate is large, it would be wise to seek the advice of a good tax accountant.
Publisher's Copyright & Legal Use Disclaimer
All articles are a legal copyright of Adviceon®Media and are for educational
purposes only. The particulars contained herein were obtained from sources
which we believe are reliable, but are not guaranteed by us and may be
incomplete. This website is not deemed to be used as a solicitation in a
jurisdiction where this representative is not registered. This content is not
intended to provide specific personalized advice, including, without
limitation, investment, insurance, financial, legal, accounting or tax
advice; and any reference to facts and data provided are from various sources
believed to be reliable, but we cannot guarantee they are complete or
accurate; and it is intended primarily for Canadian residents only, and the
information contained herein is subject to change without notice.
References in this website to third party goods or services should not be
regarded as an endorsement, offer or solicitation of these or any goods or
services. Always consult an appropriate professional regarding your particular
circumstances before making any financial decision. The information provided
is general in nature and should not be relied upon as a substitute for advice
in any specific situation. The publisher does not guarantee the accuracy and
will not be held liable in any way for any error, or omission, or any
financial decision.
Mutual Funds Disclaimer
Commissions, trailing commissions, management fees and expenses all may be
associated with mutual fund investment funds, including segregated fund
investments. Please read the fund summary information folder prospectus
before investing. Mutual Funds and/or Segregated Funds may not be
guaranteed, their market value changes daily and past performance is not
indicative of future results. The publisher does not guarantee the accuracy
and will not be held liable in any way for any error, or omission, or any
financial decision. Talk to your advisor before making any financial
decision. A description of the key features of the applicable individual
variable annuity contract or segregated fund is contained in the Information
Folder. Any amount that is allocated to a segregated fund is invested at the
risk of the contract holder and may increase or decrease in value. Product
features are subject to change.
Life Insurance and Segregated Funds Disclaimer
Life Insurance policies vary according to contract terms. Please read any
Life Insurance policy contract provided, or the segregated fund summary
information folder prospectus before the time of purchase. Full details of
coverage, including limitations and exclusions that apply, are set out in
the policy of insurance. Commissions, trailing commissions, management fees
and expenses may be associated with segregated fund investments which may
not be guaranteed and their market value changes daily and past performance
is not indicative of future results. A description of the key features of a
life insurance policy, a segregated fund; and any applicable individual
variable annuity contract is contained in information provided by the
company from which it is purchased. Talk to your advisor before making any
financial decision. For specific situations, advice should be obtained from
the appropriate legal, accounting, tax or other professional advisors. The
information provided is accurate to the best of our knowledge as of the date
of publication and is general in nature, intended for educational purposes
only, and should not be relied upon as a substitute for advice in any
specific situation. For specific situations, advice should be obtained from
the appropriate legal, accounting, tax or other professional advisors.
Rules and their interpretation may change, affecting the accuracy of the
information.
