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Originally Posted On: Probate & Your Will | Verhaeghe Law Office (freedomlaw.ca)
Have you written your will? Do you understand the complexities of probate and how to avoid it? It’s important to understand what is involved in disbursing the assets to the intended beneficiaries. If you need assistance writing a will that will avoid lengthy probate, call us at 587-410-2500 to find out how we can help.
In Canada, almost all wills are briefly probated to establish validity if there is an estate. For the purposes of this blog, we are discussing the Administration (extended probate) process necessary for those who die without a will.
Probate is the process taken on by the court to manage all of your legal and financial matters after your death if you do not have a will with a designated executor. The main problems associated with probate are time and money.
The Hazards of Probate
People who die without a will are said to have died intestate. Without a will to indicate your preferences for distributing your assets, the court will put your entire estate into Administration (probate). This will tie up all of your assets for an undetermined length of time. This time may be compounded by issues such as mortgages on a home that need to be paid, homeowners insurance for a home that is now vacant, and other expenses. The court-appointed administrator will need to ensure these payments in addition to their distribution responsibilities. During this time, probate fees are applied against the assets and can consume a significant percentage of the estate. In some cases, the estate may become completely drained just paying the expenses and related probate fees. The probate process may take up to a year.
For estates in Adminstration, the court appoints an administrator to manage the funds, pay the bills, and distribute the estate. This may not be your spouse, child, or family member. When distribution is determined, it may not be in a way that you would have preferred. Your spouse or children will not automatically get a certain percentage or an equal amount. In some cases, there are distribution plans from Provincial courts that are not at all what you would have wanted.
You don’t have to be wealthy to run into issues with Adminitration. If you have assets and you want your family to receive them, your best defense is a good offense. Write a will.
The Best Ways to Avoid Probate
Put Assets in Joint Accounts
- Joint financial accounts are not subject to probate. The right of survivorship applies and the account will automatically go to the joint account holder.
- Add a joint owner to home and car titles. Keep in mind that this gives the joint owner the ability to take out loans against property. Any decisions you wish to make will require their cooperation.
List Beneficiaries on Applicable Assets
- Life insurance policies with listed beneficiaries go the person you have named and are not considered part of the estate (unless you have listed “estate” as the beneficiary).
- Financial accounts with beneficiaries already named are not included in your estate.
- RRSPs or TFSA with named beneficiaries are not subject to probate fees.
Reduce the Size of Your Estate
- Put your money into registered accounts, such as RRSPs
- Change financial accounts to joint accounts with rights to survivorship
- Gift assets in legally acceptable amounts to your intended beneficiaries while you are alive
Write a Will
- The best way to avoid probate fees is to write a will with the aid of an experienced wills and estates lawyer. By making your wishes clear in a will prepared by a lawyer, your estate will not be subject to a prolonged probate, especially if no-contest provisions are included.
- Keep in mind that a will is a legal document and is available to the public during probate. Never include information that would compromise the estate, such as passwords to online accounts.