ProbateShow Table of Contents
In provinces other than Quebec, the term probate generally refers to the court-supervised process of administering a decedent's estate, ultimately distributing the net proceeds to the rightful heirs (generally in accordance with the will, if a valid will is available).
Probate can take up to a year or more, and involves a number of legal steps.
See also Quebec probate.
Is Probate Necessary?
Probate laws and rules are determined at the province and territory level; there are no federal requirements.
In most cases, if the estate contains only assets that do not require probate (see Probate Exclusions below) or the remaining estate is considered "small", then probate is not required (see Small Estate Probate for specifics by province).
Even if probate is not required, however, some people choose to go forward with an official probate process anyway (see Benefits below).
A number of asset types are generally exempt from the probate process:
- Assets with named beneficiaries, such as
- Life insurance policies (unless the beneficiary is the estate itself)
- Retirement plans (e.g., RRSPs, LIRAs)
- Trusts (that existed prior to death)
- Funds held in Payable-On-Death (POD) account
- Securities registered in a transfer-on-death (TOD) form
- Real estate subject to a transfer-on-death (TOD) deed
- Vehicles registered in a transfer-on-death (TOD) form
- Jointly owned assets, such as
- Property held in joint tenancy with right of survivorship
- Property held in community property with right of survivorship
- Sundry low-value household items
Is a Lawyer Required?
In most cases, the decision to retain a lawyer is up to the executor: see Do I Need a Lawyer?
Note that even if the executor does hire a lawyer, the executor will still personally have a lot to do, and EstateExec will still be very useful in terms of tracking assets, expenses, and more.
Probate details vary somewhat by province, but there are many common elements. While it is sometimes possible to settle an estate without going through probate, many of the basic concepts are the same whether or not the court is involved:
Appointment: The first step is to get the court to formally appoint you as executor (or personal representative, or administrator, or trustee, or whatever local term is used). This step requires filing documents with the court, notifying potentially interested parties, and obtaining a probate bond if required. See Becoming an Executor for details, and Probate Forms.
Estate Inventory: You will need to provide the court with an official inventory of estate assets. Often, an initial version of this inventory will be required along with the probate application, but this inventory can be updated later if additional information comes to light. See Taking Inventory.
In Each Province: Personal property (such as a bank account or coin collection) is generally probated in the decedent's legal province of residence, but real estate is probated where the property is physically located. Certain classes of personal property, such as vehicles that are registered and titled out of province, may also need to be probated in the jurisdiction where the property is domiciled. If there are multiple real properties in a single province, you can probate them all in the same probate court, but if the decedent owned property in multiple provinces or internationally, you'll have to go through the settlement process in multiple locations (see Ancillary Probate).
Creditor Notification: It is best practice to notify creditors of the probate process so they know to submit claims, and many provinces require such notification for estates within their jurisdictions. See Finding Debts.
Family Entitlements: A surviving spouse and other dependants often have rights to the estate that can supercede the terms of a will or even legitimate claims of creditors. In some cases you are legally obligated to inform the spouse of those rights, and in most you are required to wait a certain amount of time to let the spouse decide whether to make any claims. See Family Entitlements.
Debt Resolution: Once you understand the overall financial situation of the estate, you must attempt to resolve all debts. See Resolving Debts.
Tax Payments & Clearance Certificate: You must file a tax return for the decedent's final year of life, and for the estate. It is best practice to then apply for a CRA Clearance Certificate before distributing any assets to heirs See Paying Taxes.
Asset Distribution: Once you have resolved all debts and paid any taxes due, you distribute the remaining assets to the rightful heirs. See Making Distributions.
Passing of Accounts: The final probate step is usually the passing of accounts, in which you submit a final accounting report of estate financials to the court for approval. See Final Accounting Report.
It can sometimes be difficult to determine which court to use for a given estate, and the particular type of court that oversees the probate process varies by province. If you are using EstateExec, Tasks: Start probate (see sample) will help you find the appropriate court for your estate.
As noted above, remember that real property must be probated in the province in which it is physically located, so you may need to go through probate in multiple provinces.
Costs and Fee Calculator
Probate court fees can vary from $0 to $100,000+ depending on estate province and value. In addition, it's common to spend thousands of dollars on lawyers and accountants – and since lawyers and accountants typically charge by the hour, having your information well-organized via EstateExec will likely pay for the EstateExec licensing fee many times over.
If you are using EstateExec it will automatically calculate estate assets subject to probate and the resultant provincial probate fees: create estate for free!
If probate is required, one clear benefit of probate is that you will be following the law. However, even if probate is not required, it can help shield you from potentially unhappy heirs, and it will also get you a document commonly known as your "Letters" (sometimes known as Letters of Probate, Letters of Administration, Letters Testamentary, etc.), which will make it easier for you to prove your authority when dealing with third parties such as banks.