You may have heard the term probate in the past, or maybe it’s the first time you’re learning about it - either way, it’s an important element of estate planning. While it’s not you who handles probate - rather, it’s your executor who handles it after you pass away - it’s important to understand why having a will makes probate easier; what you can do before you pass to make probate easier on your family; and what probate is in case you’re ever the executor of someone’s estate. Read on for everything you need to know about probate.
What is probate?
Probate is the process of the courts formally accepting a will, or, if the deceased did not have a will, appointing someone to act on their behalf. The process is designed to verify that the testator has passed away, that that person was the author of the will, and that it’s a valid will. It gives the executor or administrator (the term for an executor of an estate that did not have a will) the power to prove the executor’s authority to administer the estate.
Does every will have to go through probate?
Not every will has to go through probate. Your will will likely need to go through probate if:
- You own property (a home)
- A bank or other third party requires a grant of probate for assets over a certain dollar amount
Your will may not need to go through probate if:
- You have a small estate - many banks will release assets under a certain dollar amount
- If a financial institution agrees to waive a grant of probate (they may require additional protections)
- If you are a First Nations member who is a resident of a reserve
- If you used multiple wills to separate assets, and the second will does not require probate
And your executor may want to apply for probate even if they don’t have to for the following reasons:
- Reduce executor liability - a grant of probate protects the executor from claims from other people who say there is another valid will
- Claim expiration - if a spouse or other person has a claim to the estate, they have a certain amount of time to make that claim - they only have a certain amount of time after a grant of probate is secured
- If the estate is involved in litigation (the grant is required to to pursue/defend)
- To prove the validity of a will (for example if there are questions about the validity)
In Quebec, only a holograph (handwritten) will or a will in front of two witnesses requires probate. A notarial will does not require probate.
When does probate happen?
Probate happens after someone passes away, and involves filling out an application for a grant of probate - this application requires providing documentation (including a will) so an executor can acquire a grant of probate to act on the deceased’s behalf and execute the wishes outlined in their will (or, if they didn’t have a will, acquire a grant of administration to distribute their assets according to a set of default laws in their province).
Where does probate happen?
Typically your executor will apply for a grant of probate in the province where you lived at the time of death.
What is required to apply for a grant of probate/administration?
When applying for a grant of probate, your executor will need to provide a variety of supporting documents. These vary from province to province, but generally they will need to provide:
- The application itself
- An original copy of the will
- Proof that the executor has notified beneficiaries of the application
- An affidavit of execution of the will - this is provided by one of the will’s witnesses, and is essentially a way to confirm validity of the will. Note that this can be completed at the time you create your will, or it can be provided by a witness after you pass away. Note that in BC this is not required
- A list of assets and liabilities at the time of death
- A list of beneficiaries and what they’re entitled to receive
- Payment of the relevant probate fees/taxes
- If several executors were listed in the will, but only one is applying, confirmation that the other executor is renouncing their position
There may be other requirements depending on who the executor is (for example a bond/security if they are located outside of Canada) or where you’re located (for example in BC you have to provide a Certificate of Wills Notice Search that proves you searched for the will on the provincial registry).
What are probate fees?
In Canada there is no inheritance tax - when someone passes away, their estate pays their final income tax statement, but by the time a beneficiary receives an asset, they don’t have to pay taxes on it. There is, however, a fee associated with probate, known as estate administration tax. If your estate requires probate, there is a fee based on the size of your estate.
What are the probate fees in my province?
We’ve included a breakdown of what probate fees are in each province:
- No probate fees if the estate is under $1,000.
- No flat fee is the estate is under $50,000; 0.5% per $1,000
- Over $50,000 there is a $250 fee plus 1.5% per $1,000
- No probate fees if the estate is under $25,000
- Between $25,000-$50,000 there is a $208 flat fee plus 0.6% per $1,000
- Over $50,000 there is a $358 fee plus 1.4% per $1,000
Alberta, NWT, Nunavut:
- Flat fee starting at $25 based on the size of the estate; the most you pay os $400 if the estate is over $250,000
- No flat fees; just a 0.7% fee on every $1,000 of assets
- Under $10,000 there is a $70 flat fee
- Over $10,000 there is a $70 flat fee plus 0.7% per $1,000
- Flat fee ranging from $25-100 for estates under $20,000
- Over $20,000 there is no flat fees; just a 0.7% per $1,000 in assets
- Flat fee ranging from $83.10-973.45 for estates under $100,000
- Over $100,000 there is a $973.45 fee plus 1.645% per $1,000
Newfoundland and Labrador:
- Under $1,000 there is a $60 flat fee
- Over $10,000 there is a $60 flat fee plus 0.5% per $1,000
- Flat fee ranging from $50-400 for estates under $100,000
- Over $100,000 there is a $400 fee plus 0.4% per $1,000
- No fee on estates under $25,000
- Flat fee of $140 on estates over $25,000
Are there ways I can avoid probate?
There are strategies to either separate assets or to ensure assets do not flow through the estate, thereby avoiding probate. Those options include:
- Assessing the possibility of administering the estate without a probated will
- Designating beneficiaries on registered funds, pension plans, insurance policies, etc.
- Holding property, bank accounts, or investments jointly so they pass to the other owner when you pass away
- Using multiple wills to separate assets by: 1) assets for which a probated will is required from 2) other assets in respect of which a probated will is not required in order to administer those other assets
- Gifting assets while you’re still alive, either by creating an inter vivos trust (a trust you create while you’re still alive), or making inter vivos gifts
- Registering real estate under the Registry Act system in Ontario (not the Land Titles Act), which technically does not require a probated will to be administered
- Changing the location of an asset to another province in which either no probate taxes exist or the rate of tax is much lower than in Ontario
What is an Affidavit of Execution?
An affidavit of execution is a document that helps to confirm the validity of the will. This form is filled out by one of your witnesses, and states that they were with you when you signed your will, and that they were in the presence of you (the will-maker) as well as the other witness, and they confirm these statements to be true. Many people choose to get an affidavit of execution completed at the time they create their will, while others choose to get one in the future - it can also be completed after your passing.
An affidavit of execution is required as part of the probate process in all provinces except British Columbia.
Willful provides free affidavit of execution documents for each of our active provinces, but we do not have a notary on staff - you would need to pay to have the affidavit of execution notarized, which is typically $15-30. We have a partnership with Notary Pro in BC and Ontario to help you get this done easily online, and we’re working on additional partnerships in other provinces.
Who handles the probate process?
If you have a will your executor handles the probate process. If you don’t have a will, the court will appoint an “administrator,” who acts in the same role as an executor.
What happens if I named an executor in my will but they are unable/unwilling to act when I pass away?
In this case, your estate would be treated as if you didn’t have an executor, and a family member or corporate trustee could apply to be the administrator of your estate (this is called a grant of administration with will annexed).
Being the executor of an estate is a big job - from funeral planning, to ensuring all debts and liabilities are paid off, to probate - it’s a position that comes with a lot of responsibility, and that is extremely time-consuming. Even a simple estate can take 12-18 months to administer. For more on how to choose an executor, read more in our executor guide.