How to avoid probate fees in Canada - MoneySense (2024)

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What is probate?

Thanks for your question, Laura. Probate is on the minds of many Canadian families, especially as the value of their assets increase. The cost of probate fees on growing assets needs to be considered in every estate plan.

Let’s review what probate is and the fees Canadians face, before we look at some strategies that could work for your mother, Laura.

The probate process is the legal procedure after death to validate the will and administer the estate. The executor named in the will—or an appointed administrator, if there is no will—is responsible for initiating the application process. The court reviews the application to ensure the will meets the necessary requirements, and it will grant the probate if everything is in order. Then, the executor collects the deceased person’s assets, pays off any debts, and distributes the remaining assets according to the will’s instructions—or the applicable laws of intestacy if there is no will.

What you’re asking about is probate fees. These charges are imposed by the provincial/territorial government on the value of a deceased person’s estate during the probate process. The rules and rates vary across provinces and territories. But generally, these fees are calculated as a percentage of the total estate value and can be significant. They are intended to cover administrative costs associated with probate, such as court proceedings, document processing, and estate administration supervision. It’s important to note that probate fees are separate from income taxes that may apply to the estate. (Find out if you can avoid probate fees on a TFSA.)

Strategies for reducing or avoiding probate fees

As the probate fees can be substantial, especially for larger estates, Laura, individuals may explore estate planning strategies to minimize the probate fees and preserve more of their estate’s value for their beneficiaries. Let’s review a few options that can help to reduce or avoid probate.

Joint ownership and survivorship

One effective method to bypass both the probate process and the fees is to hold assets jointly with rights of survivorship. Assets such as real estate, joint bank accounts and investments may qualify. When one joint owner passes away, ownership automatically transfers to the surviving joint owner without the need for probate. Individuals can ensure that assets are transferred seamlessly by clearly specifying survivorship on legal documents.

Beneficiary designations

Naming beneficiaries for specific assets can be very efficient. Life insurance policies, registered retirement savings plans (RRSPs), registered retirement income funds (RRIFs) and tax-free savings accounts (TFSAs) allow individuals to designate beneficiaries, which saves time and probate fees. These assets bypass the probate process and are directly transferred to the named beneficiaries upon the account holder’s death. Regularly reviewing and updating beneficiary designations with a Certified Financial Planner is crucial to ensure accuracy.

Establishing trusts

Trusts are effective for avoiding probate while retaining control over assets. Setting up a living trust, such as a “revocable” or “inter vivos” trust, allows individuals to transfer assets to the trust during their lifetime. The trust document specifies how the assets are managed and distributed after the individual’s death, bypassing probate. Consulting with a knowledgeable estate planning professional is essential in ensuring proper set-up.

Gifting

By gifting assets during their lifetime, individuals can reduce their estate’s value, thereby minimizing the need for probate. Gifted assets no longer form part of the estate upon death. However, it is important to consider tax implications and legal restrictions associated with gifting. Seeking professional advice can ensure compliance with tax laws and proper execution of gifting strategies.

Can you avoid the probate process and fees?

As you can see, Laura, avoiding the probate process can save time, money (ahem, probate fees) and streamline the transfer of assets to beneficiaries via the strategies listed above. Remember, estate planning is a complex process, and individual circ*mstances are as unique as the person whose name is on the will and their families and love ones involved. It’s always a good idea to get personal and professional advice from lawyers, estate planners and financial advisors to help you navigate the intricacies of avoiding probate effectively.

Thanks for your question.

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