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PROBATE

  1. What is Probate?
  2. What are probate fees?
  3. Who is subject to probate fees?
  4. If I die with a will or intestate, are my assets subject to probate?
  5. How are probate fees charged?
  6. How are assets "valued" to determine probate fees?
  7. Do probate fees vary by province?
  8. Are wills that are made in Quebec subject to probate?
  9. Are probate fees charged on the death of the last spouse only?
  10. Are registered assets subject to probate?
  11. Are non-registered assets subject to probate?
  12. Are jointly-held, non-registered assets subject to probate?
  13. Are a corporation's assets subject to probate?
  14. Are the shares of a corporation subject to probate?
  15. Are the assets held by an inter vivos trust subject to probate?
  16. Are insurance proceeds subject to probate fees?
  17. How soon after death must probate fees be paid?
  18. Is there a late penalty charge for delayed payment of probate fees?
  19. Are pre-death debts paid first or probate fees?
  20. Are there different ways to avoid probate fees?
  21. If the deceased has loaned monies to another person (with or without interest) is the loan included in probate?
  22. Is information about my probated assets available to the public?

1. What is probate?

The executor named in the will must obtain approval from the provincial Surrogate or Probate Court to effect the terms of the will. The executor, normally with the help of a lawyer, applies for Letters Probate. Letters Probate give legal authenticity to the will, allowing the executor to perform his/her duties, as the estate assets are frozen until Letters Probate are granted.

Where a person dies intestate (without a will), or dies with a will either without having appointed an executor or an executor who cannot or will not act on behalf of the deceased, the duty to settle the deceased's estate is given to an administrator. The administrator is granted Letters of Administration, rather than Letters Probate.

2. What are probate fees?

Probate fees are the fees charged by a provincial government to grant Letters Probate or Letters of Administration. Probate fees cover the cost of providing probate of the will, and other services.

3. Who is subject to probate fees?

The deceased 's estate, regardless of the age of the deceased, is subject to probate fees.

4. If I die with a will or intestate, are my assets subject to probate and probate fees?

Yes.

5. How are probate fees charged?

When the executor (administrator) applies to the provincial surrogate or probate court for Letters Probate (Letters of Administration) the application must list the assets subject to probate (administration).

Generally, the assets and liabilities of the deceased, irrespective of their nature and location, which pass to the deceased's estate on death must be included in the inventory of assets. There are some assets that do not have to be included.

Assets not Included:

(For example, in Manitoba all property regardless of where it is situated must be included in the probate inventory. Real estate located outside of Manitoba will also be subjected to probate fees in the jurisdiction in which the real estate is located.)

6. How are assets "valued" to determine probate fees?

Assets are valued at fair market value. Debts or loans in respect of the asset are normally not deductible in determining the asset value to which the probate fee will be applied. (This is not always the case for a principal residence. The rules are not uniform between the provinces on this issue. For example, in Manitoba if there is a mortgage or lien against the property only the net amount is required to be shown in the inventory for probate. In other words, a mortgage or loan would be deductible. Here is an example using the Manitoba situation. Assume you buy a home for $100,000 and die when the market value of the home is $200,000. You have an outstanding mortgage of $50,000 at the time of death. The home is owned by the deceased only. The spouse will inherit the home via the terms of the will. The probate fees will be based on $150,000 in Manitoba).

7. Do Probate Fees vary by Province?

Yes. The basic probate fees as at the date of writing are listed on the next page. Not included are the additional fees that a probate court will charge for extra services (such as issuing a subpoena to the deceased's debtor or for taking or swearing an affidavit, etc.) and upon finalization (by the executor) and closing of the estate matters. For information on the closing fees or updated fee information, have your client call his/her lawyer or call the probate court in your area.

Province Probate Fees
(as of October 1, 1997)
British Columbia
(604) 356-1200
Less than $10,000 - Nil
$10,001 - $25,000 - Flat fee of $200
$25,000 - $50,000 - $200 plus $6 per $1,000 or part thereof in excess of $25,000
Greater than $50,000 - $350 plus $14 per $1,000 or part thereof in excess of $25,000
Alberta
(403) 297-2216
Less than $10,000 - Flat fee of $25
$10,000 - $25,000 - $100
$25,001 - $50,000 - $200
$50,001 - $100,000 - $400
$100,001 - $250,000 - $600
$250,001 - $500,000 - $1,500
$500,001 - $1,000,000 - $3,000
Greater than $1 Million - $6,000
Saskatchewan
(306) 787-5377
$7 on every $1,000 or portion thereof
Manitoba
(204) 945-3184
$20 for the first $5,000 Plus $5 per $1,000 on Excess
Ontario
(416) 326-2940
$5 per $1,000 on the first $50,000 Plus $15 per $1,000 on Excess
Quebec
(514) 393-2032
Flat fee of $64
(Not Applicable for Notarial Wills)
Nova Scotia
(902) 424-4900
Up to $10,000 - Flat fee of $75
$10,001 - $25,000 - $150
$25,001 - $50,000 - $250
$50,001 - $100,000 - $500
$100,001 - $150,000 - $600
$150,001 - $200,000 - $800
Greater than $200,000 - $800 Plus $5 per $1,000 on Excess over $200,000
New Brunswick
(506) 658-2549
Up to $5,000 - Flat fee of $25
$5,001 - $10,000 - Flat fee of $50
$10,001 - $15,000 - Flat fee of $75
$15,001 - $20,000 - Flat fee of $75
Greater than $20,000 - $5 per $1,000
P.E.I.
(902) 368-6004
Up to $10,000 - $65
$10,001 - $25,000 - Flat fee of $115
$25,001 - $50,000 - Flat fee of $215
$50,001 - $100,000 - Flat fee of $415
Greater than $100,000 - $415 + $4 Per $1,000
Newfoundland
(709) 729-2569
Up to $1,000 - Flat fee of $60
Greater than $1,000 - $60 plus $0.50 per $1,000 or part thereof in excess of $1,000
Yukon
(403) 667-5938
Same as British Columbia
NWT
(403) 920-8759
$15 for the first $1,000 plus $3 per $1,000 on Excess

8. Are wills that are made in Quebec subject to probate?

Notarial wills in Quebec are not subject to probate (see Qestion 25 in Section 11 on the forms of wills used by Quebec residents). The other forms of Quebec wills (wills made in the presence of witnesses and holograph wills) do require probate. However, the procedure for probate in Quebec is quite inexpensive and relatively speedy as compared to most other provinces.

9. Are probate fees charged on the death of the last spouse only?

No. Probate fees are charged every time a will is probated (or an estate is administered).

10. Are registered assets subject to probate?

It depends. Registered assets, such as RRSPs, allow direct designation of beneficiary (except in Quebec, where the beneficiary must be named under the will, unless you are dealing with a trusteed plan - see Question 2 in the Beneficiary Designation Section). Where the beneficiary is designated under the plan rather than the will, most provinces will not levy probate fees against that asset. See the sections entitled Beneficiary Designation.

A notarial will in Quebec is not subject to probate. Consequently, naming the RRSP beneficiary under the notarial will allows the deceased RRSP owner to avoid probate. Probate must be obtained for other forms of wills in Quebec.

11. Are non-registered assets subject to probate?

It depends. In general, non-registered assets are subject to probate. Here are some exceptions:

12. Are jointly-held, non-registered assets subject to probate?

No, so long as the asset is owned under Joint Tenancy with rights of survivorship and not Tenants in Common. Joint owners have equal undivided interests to the assets and the key feature of joint tenancy is that title to the property passes completely and irrevocably on death of one joint owner to the surviving joint owner(s). Joint tenancy means the asset passes automatically to the survivor regardless of what the will says or even if there is no will.

Tenants in common, on the other hand, have separate interests in the property and no right of survivorship to the other owner's interests. When one of the tenants in common dies, the remaining survivor(s) continues to own exactly what they did prior to the death. The deceased's part does not automatically go to the survivor(s). The deceased's part does not avoid probate because it forms part of the deceased's estate.

13. Are a corporation's assets subject to probate?

No. Where a shareholder of a corporation dies, the corporation continues to exist and its assets are not listed in the deceased shareholder's application for probate.

14. Are the shares of a corporation subject to probate?

Yes. The value of the shares of the corporation that are owned by the deceased shareholder must be included in the value of the deceased shareholder's estate.

15. Are the assets held by an inter vivos trust subject to probate fees?

It depends on the terms of the trust. See the full discussion of inter vivos trusts in a later section. There you have a discussion of how the trust terms can be devised to ensure the deceased's assets, held inside the trust, can avoid probate.

16. Are insurance proceeds subject to probate?

It depends. If the estate is named the beneficiary of the proceeds, yes. If another beneficiary is named, the proceeds of insurance go directly to the beneficiary and avoid being included in the deceased's probated estate.

17. How soon after death must probate fees be paid?

The executor must probate the will to distribute the assets of the estate to the beneficiaries according to the will. The assets of the estate are frozen until letters probate are issued. Probate fees must be paid at the time of the granting of letters probate. So, probate fees are one of the first fees charged.

18. Is there a late penalty charge for delayed payment of probate fees?

No. But the request for probate will not be processed unless and until the probate fees are paid.

19. Are pre-death debts paid first or probate fees?

The priority of payment is as follows:

  1. Funeral Costs
  2. Probate (or administration) fees
  3. Federal Income Tax
  4. Secured debts to third parties
  5. Unsecured debts to third parties
  6. Executor's fees

Only after the above-mentioned are paid can the estate representative distribute the remaining assets according to the will, starting with the legacies (cash payouts) provided for under the will.

20. Are there different ways to minimize probate fees?

Yes. Here is a general list plus the sections to which you should turn to understand the details on the various options.

  1. by designating beneficiaries (see Beneficiary Designation) where possible and appropriate
  2. by incorporating where appropriate (note value of shares still included in probate - unless trust holds shares - see Trusts)
  3. by establishing an irrevocable inter vivos trust (see Trusts)
  4. by joint ownership (see Joint Ownership)
  5. by gifts to family members prior to death (see Gifts, Loans and Inheritances - Related Persons)

21. If the deceased has loaned monies to another person (with or without interest) is the loan included in probate?

Yes. A loan payable is an asset of the deceased so it must be included unless it was forgiven on death.

22. Is information about my probated assets available to the public?

Usually. Most provinces make the probated will a public matter. Reason? So the deceased's creditors know whether they will be paid.