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.
In this article we cover everything you need to know about probate, including what you can do before you pass to make probate easier on your family, probate fees, and how to probate a will if you’re ever the executor of someone’s estate.
What Is Probate In Canada?
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.
How Does Probate Work In Canada?
Probate in Canada varies by province but generally works by the executor submitting an application to the provincial court, receiving a grant of probate, and paying the probate fees required by the province and value of the estate. Unless probate is not required (for example, when the value of an estate is small), the executor cannot administer the estate until probate is granted.
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).
How Long Does It Take for a Will to Go Through Probate in Canada?
Excluding the time it takes to put together an application for probate, it can take anywhere from a few weeks to several months for the courts to finalize and approve an application and grant probate to the executor. If there are issues or challenges to the will, this process can take even longer. At an average, budget about 3 months for the probate process.
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.
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.
Do You Need a Lawyer to Probate a Will in Canada?
No, it is not necessary to hire a lawyer to probate a will in Canada; however, there may be paperwork involved, which a layperson may find complicated and time-consuming. While legal training isn’t required to apply for probate, an experienced estate or probate lawyer would be qualified to handle the probate application process according to civil rules. They would also be responsible for handling any court rejections or complaints, any other steps needed in the probate or asset distribution process, and answer any questions you might have.
What Is The Probate Process?
While the probate process in Canada varies by province, the overall steps are similar. Here’s what an executor can expect when probating a will:
Step 1: Prepare the Probate Application
The specific forms and supporting documents required in a probate application vary by province but generally include the original, signed copy of the will, death certificate, a list of beneficiaries, and a list or affidavit of the deceased’s assets and liabilities.
Before submitting the application, you may also be required to notify individuals including anyone who is also named as an executor, all named beneficiaries, and the deceased’s surviving spouse and/or children.
Step 2: File the Probate Application With the Relevant Provincial Court
Once the appropriate forms and documents are ready, they can be submitted for probate. The application must be filed in the province where the deceased individual was a resident.
Once the application is filed, it can take anywhere from a few weeks to a few months for the application to be approved and the grant of probate to be issued. The timeline depends on the jurisdiction as well as if there are any problems with the application.
Step 3: Pay the Probate Fees
The executor is responsible for paying probate fees to the court, along with any application costs. Probate fees vary by province and the value of the estate—an experienced estate lawyer or tax consultant can advise you on how to limit probate fees when planning your estate.
Once probate has been granted (the will and executor have been certified by the court), the executor(s) may continue with administering the deceased person’s estate as dictated by the will.
Role of an Executor When Probating A Will:
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.
Within the probate process specifically, the executor is responsible for compiling the probate application, submitting it to the relevant provincial court, and paying any application and probate fees required.
For more on how to choose an executor, read more in our executor guide.
Do All Wills Have to Be Probated in Canada?
Not every will needs to be probated in Canada. 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
- You are a joint owner of a property whose total value or type of ownership is difficult to determine
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 pursue/defend)
- To prove the validity of a will (for example if there are questions about the validity)
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What Is A Grant Of Probate And What Do I Need To Apply?
A grant of probate is issued once the authenticity of a will is validated through the probate process. 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.
We’ve included a breakdown of what probate fees are in each province:
Probate Fees in Ontario:
Ontario uses an increasing scale up based on the size of the estate, the percentage increases on estate amounts in excess of $50,000.
Fees valid as of July, 2023, accessed from the Government of Ontario.
Probate Fees in BC:
In BC, probate fees are set by the Probate Fee Act as follows:
Fees valid as of July, 2023, accessed from the Probate Fee Act.
Probate Fees in Alberta:
Alberta is the only Canadian province with a maximum on probate fees.
Fees valid as of July, 2023, accessed from the Government of Alberta.
Probate Fees in Saskatchewan:
Saskatchewan’s probate fees are a percentage of the total size of your estate, regardless of the size. As a result, the larger your estate, the higher your probate fees.
- $17 per every $1000 of the estate’s value
Fees valid as of July, 2023, accessed from the Saskatchewan Court of King’s Bench.
Probate Fees in Manitoba:
As of November 6, 2020, probate fees have been eliminated in Manitoba.
Probate Fees in New Brunswick:
In New Brunswick, the Probate Court Act outlines the following probate fees:
Fees valid as of July, 2023, accessed from the New Brunswick Probate Court Act.
Probate Fees in Nova Scotia:
In Nova Scotia, estates under $100,000 are subject to a flat fee and a percentage for the remainder of the estate.
Fees valid as of July, 2023, accessed from the Nova Scotia Courts of Probate.
Probate Fees in Newfoundland and Labrador:
In Newfoundland and Labrador, estates under $1,000 are subject to a flat fee and a percentage for the remainder of the estate.
Fees valid as of July, 2023, accessed from the Supreme Court of Newfoundland and Labrador.
Probate Fees in PEI:
In Prince Edward Island (PEI), the Probate Act states that, estates under $100,000 are subject to a flat fee and a percentage for the remainder of the estate.
Fees valid as of July, 2023, accessed from the PEI Probate Act.
Probate Fees in Quebec:
In Quebec, only a holograph (handwritten) will or a will in front of two witnesses requires probate and is subject to a flat fee. A notarial will does not require probate; however, there will be a court filing fee of $223.
Fees valid as of July, 2023, accessed from Justice Quebec.
Nunavut Probate Fees:
Estates in Nunavut are subject to a maximum of $400 in probate fees.
Fees valid as of July, 2023, accessed from the Nunavut Courts.
Probate Fees in Yukon:
Estates in the Yukon are subject to a maximum of $140 in probate fees.
Fees valid as of July, 2023, accessed from the Government of Yukon.
Probate Fees in Northwest Territories:
Estates in the Northwest Territories are subject to a maximum of $400 in probate fees.
Fees valid as of July, 2023, accessed from the Government of Northwest Territories.
How Can I Avoid Probate In Canada?
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
- 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 the current province.
Other Frequently Asked Questions about Probate:
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 BC.
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.
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).
Can You Empty a House Before Probate in Canada?
The simple answer is no. Until the courts have granted probate, you cannot and should not empty the deceased’s house.
First, the courts need to grant the executor legal authority to administer the deceased’s estate. The court may also require the executor to take inventory of all items in the house before disbursement or disposal. Some items might also require appraisal, while some items may have specific instructions in the will.
If a house is emptied before probate has been granted, this could lead to a host of legal issues and prolong the entire probate and administration process.
Note: the only time this doesn’t apply is if probate is not legally required.
Provincial Resources On Probate
Here are some additional resources for applying for probate in different provinces:
- Probate A Will In Ontario
- Probate A Will in British Columbia
- Probate A Will in Alberta
- Probate A Will in Saskatchewan
- Probate A Will in Manitoba
- Probate A Will in Nova Scotia
- Probate A Will in PEI
- Probate A Will in New Brunswick
- Probate A Will in Quebec
- Probate A Will in Newfoundland and Labrador
- Probate A Will in Northwest Territories
- Probate A Will in Nunavut
- Probate A Will in Yukon
Prepare Yourself For Probate
While probate varies depending on the province you live in and the complexity of your will, a well thought out estate plan can save your family time, money and hassle in the probate process regardless of where you live.
Start writing your legal will now to ensure a smooth probate process in the future. Join the thousands of Canadians who have already created their will online with Willful.