What is probate? Blog post by Financial Concierge

What is probate?

Probate is the legal procedure that confirms a) that your will is valid and b) that the executor you appointed in your will is authorized to act in that capacity.

Probate may be required depending on the complexity and value of the estate.

How do probate fees work?

Probate fees are a tax charged by the government on an estate’s total value. The fair market value is comprised of various estate assets, including a primary residence, cottage or investment properties, and registered and non-registered investments – essentially any asset owned by the deceased’s estate.

How are probate fees calculated?

How probate fees are calculated varies by province. To illustrate, here is the probate fee schedule for three Canadian provinces:

  • For estate values up to $25,000, there is no probate fee
  • The gross value between $25,000 and $50,000 ($6 per $1000 or portion 0.6%)
  • Gross value over $50,000 ($14 per $1000 or portion 1.40%)
  • An additional administration fee of $200 for estate values over $25,000.
  • Ontario eliminated the estate administration tax for estates with a value of $50,000 or less, effective January 1, 2020. The new rates are as follows:
  • $50,000 or less – no estate tax (probate fees)
  • Over $50,000 – $15 for every $1000 or portion 1.50%
  • $10,000 or less: $35
  • Over $10,000 but not more than $25,000: $135
  • Over $25,000 but not more than $125,000: $275
  • Over $125,000 but not more than $250,000: $400
  • Over $250,000: $525

How to avoid probate

Depending on several factors, including the estate’s value, you will have to go through probate, and you won’t have a choice. Financial institutions often require probate to make sure the will is valid. You can take steps to reduce probate fees and ensure that when you pass away, most, if not all, of your estate goes to whom or where you want it to go.

Here are four ways you can reduce your estate assets while you are still living:

  1. Name a beneficiary. Make sure you name a beneficiary on items such as Life Insurance, RRSPs, RRIFs, Tax-Free Savings Accounts (TFSAs), and other Non-Registered assets at Insurance Companies. Naming a beneficiary ensures these monies flow outside your estate, avoiding probate.
  2. Give money away while you’re still living. For retirees with significant amounts of money, give some of it away. By doing so it is out of your hands and into the hands of a person who will be able to put that money to good use. Pay down a mortgage, pay off debt etc. Once it the asset is out of your hands, when you pass away it is not part of your estate.
  3. Transfer your accounts to joint owners with the right of survivorship. Joint Ownership can be a way to avoid probate fees but be careful; there can be some drawbacks. There is Joint Ownership with the Right of Survivorship and Joint Tenants in Common.Joint Ownership with a spouse on bank accounts, the home, and non-registered accounts is a good idea. Joint Ownership of children can have a negative impact before or after death, depending on the family dynamics. Make sure you do your research.
  4. Establish a trust. Trusts can also help in minimizing your estate. Testamentary Trusts are used at the time of death and can be a great tool for estate planning. Your trust will be managed by an estate trustee, who you will name in your will.

Dying without a will

Your will is the only way you can control what happens to your estate after you pass away. Dying without a will could see your estate divided among those you did not intend to receive money or receive the money soon.

If you pass away and are not married or common law, have a child, and have no will, your estate will go to your child. What if your child is a minor? You also want to decide who your executor will be.

It is always important to have a will so that your wishes are carried out as you want – not as the government would like.

The bottom line on probate fees

My best advice is not to worry about probate fees. Use the steps I outlined above to reduce any estate administration tax while ensuring you aren’t compromising your financial position while still living. In other words, don’t give ALL of your personal property away.

We often make a bigger deal about probate fees than necessary, and sometimes the pressure comes from family members who may or may not have our best interests at heart. However, take time to know the costs and what you can do to minimize those costs.

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