What is Probate in Canada

In Canada, when a person passes away, their estate will undergo a procedure called probate. 

The probate procedure ensures that the person’s will is legitimate before it is carried out. It is essentially an approval process that validates a will. This helps in the appointment of a proper executor or administrator of the will. 

Knowing the details about the probate process helps if you are designated as a beneficiary in someone’s will. It can be a lengthy and expensive process. So, understanding the basics of it will help you reduce the cost and time factor that it might take for you to get your inheritance. 

What is the probate process and how does it work?

Probate is the process through which the legitimacy of a will is validated. When a person dies, their will is taken up and validated through a court of law. It is according to the specified regulatory dynamics of the respective province or territory in Canada. 

The main purpose of the probate process is to see if the will of a deceased person meets the legal requirements. And whether it can be carried through or not. 

Secondly, the probate process also officially authorizes the executor of that will. They will administer and take over the estate of the deceased individual when the probate process concludes. 

Once the executor has been authorized, they are handed over a legal document. This legal document is called a “grant of probate,” or a “grant of administration.” This grant is proof that the will has been legally validated. And it can further be administered as per the protocol and wish of the deceased. 

Another important purpose of this probate process is the rightful distribution of assets of the deceased person. 

For example, if the deceased had a former spouse or a business partner, the distribution of their assets can be a little tricky. It is also possible that the deceased wrote multiple wills due to an ongoing financial dispute. 

So, to avoid all this, a probate is necessary. While the probate process is ongoing, no assets will be released. And this will give enough time to the financial institutions. They will ensure that, eventually, all the assets are lawfully distributed to the rightful inheritors. 

Probate ensures the safe transfer of the assets to the right people. It also ensures that these legal inheritors do not face any claims of fraud or wrongdoing in the future too. This is especially meaningful in the case of disputed financial assets. 

The probate process also ensures that if there were any overdue government taxes, they are also paid at the time of the execution of the will. 

Which assets must be probated?

As per the specific regulations of law in most Canadian provinces, the assets that must undergo the probate process typically include:

• Bank assets and bank accounts
• Investments
• Real estate
• Owned vehicles including cars, bikes, yachts, etc. 

These assets are listed in the will of the deceased person. And by going through the probate process, it will be ensured that they were rightfully owned by the deceased person and not by someone else. Or that their beneficiary has not been chosen already. 

Which assets are not included in the probate process?

In Canada, most written wills must go through probate. There are some exemptions, however. 

• Joint assets, such as joint bank accounts
• Insurance policies with a predetermined beneficiary
• Jointly-owned homes

These assets do not go through the probate process. 

Also, if the estate is small or modest, then also they will not be required to go through the probate process. 

Additionally, there are several exemptions for First Nation people. To be sure whether your will would be subject to probate, it is best to consult an expert like an estate lawyer because regulations differ greatly across Canada.

How does the probate process work?

There are certain steps involved in the entire probate process. 

First off, when a person passes away, the executor of their will is going to submit the will to the probate court. They will present all the relevant documents that include a list of all the assets and liabilities of the deceased person to the court. 

In case the deceased did not leave any will, then the court is going to appoint an administrator of the estate. This administrator will look through the probate process. The conditions of the court and regulations may differ from one Canadian province/territory to another. 

Once all the documents are submitted, the court will then verify the information regarding the estate’s assets. And they will also ensure that there are no duplicate or fraudulent wills. During the probate process, the family members can raise their objections and challenge the contents of the will. Once the court has thoroughly investigated and found the will, the enlisted assets, and the liabilities to be legitimate, it gives a green signal. If the court also finds no outstanding disputes, it will then issue a grant of probate. 

Once the grant of probate has been issued, the executor of the will is going to begin the administration to see through the legal distribution of the assets.

How long does it take for the probate process to complete?

The completion time of the probate process also varies across Canada. In some provinces, it takes several weeks for the probate process to complete. But in other Canadian territories, the process may take up to a year. 

The complexity of an estate is also a determining factor that can lengthen the probate process. 

The difference in the probate fee across Canada:

Probate fees differ across Canada. This is one reason why most Canadians have their assets moved to different provinces all across the country. 

For instance, you live in British Columbia, but you have opened multiple bank accounts that are part of your estate in Alberta. Now, why most Canadians choose to do this is because of the difference in the probate fees in both provinces. 

So, supposedly, if your total estate worth is around $550,000, your probate fee in British Columbia is going to be around $7000. Whereas, if your will is probated in Alberta, the same estate will be probated for a mere $400. 

That is a huge difference. And it is the major reason why most Canadians choose to move their assets to the provinces with small probate charges. 

Now, with multiple places in consideration, the question here arises which probate fee will be charged on which assets? 

In general, the rule is that the will is going to be probated in the province where the person held their primary residence. 

So, if your primary residence is in British Columbia, your estate will be probated there but the catch here is that it will only apply to the assets that will be available in that province at the time of your demise. 

If you pass away in BC and your assets were all in Alberta except for your home and any accounts that you had in BC, then your assets will be charged according to the probate fee of Alberta, and not of BC. The assets in Alberta will require a separate probate court order. 

Conclusion

The probate process is important especially when it comes to end-of-life planning. 

However, in case of multiple assets scattered through various provinces in Canada, the executor will require to hire specialized probate law experts. They will help in carrying out the legal proceedings as per the different laws and regulations of respective provinces.