Saturday, April 17, 2010

What does probate REALLY cost? (updated Aug 27, 2013)

With all this talk about probate and avoiding probate, it's important to have the facts. I'm often asked what probate costs. I know the people who ask me that would love a really short answer, such as "it costs $100", but realistically that short answer doesn't exist. What probate will cost depends on where in Canada you live, and what assets are in the estate.

When we talk about the cost of probate, strictly speaking the answer should be about what the court will charge you to process the probate application. To me, though that answer is essential, it's not the whole picture. The other half of the picture is the fee charged by the lawyer. In this post I'll look at both.

First of all, court fees (otherwise known as probate fees). If you apply for probate, there is no way to avoid paying a fee, even if you don't use a lawyer. Each province and territory is different and a chart of the court probate fees by province is shown at the end of this post. There is no fee or a very low fee for smaller estates. The areas of Canada that have a maximum fee are Alberta ($400) and Quebec ($65). In every other province and territory, the fee continues to increase as the size of the estate increases and there is no upper limit. This is one of the main reasons individuals like to do estate planning - they'd rather arrange things so that the money ends up with their families and not the "taxman".

Secondly, lawyer's fees. Again, they change from one place to another. It's not unusual for a lawyer to charge a percentage of the estate (up to 2% , but less for larger estates). However, it's more common that a lawyer will charge by the hour. This is because it's not always possible at the beginning of a matter to determine how long it's going to take to do the job. "Getting probate" is a complicated process if the deceased owned property that needs to be appraised, or had accounts in several banks and brokerages, or owned assets overseas.


Alberta
$25 for estates under $10,000
$100 for estates between $10,000 and $24,999
$200 for estates between $25,000 and $124,999
$300 for estates between $125,000 and $249,999
$400 for estates of $250,000 or more
British Columbia
$0 for estates under $10,000
$208 for estates between $10,001 and $25,000
$6 for every $1,000 (or part of $1,000) by which the value of the estate exceeds $25,000 but is not more than $50,000
Plus $14 for every $1,000 (or part of $1,000) by which the value of the estate exceeds $50,000
Manitoba
$50 for the first $10,000
$6 for every $1,000 by which the value of the estate exceeds  $10,000
New Brunswick
$5 for each $1,000
Newfoundland and Labrador
$85 for the first $10,000
$5 for every $1,000 by which the value of the estate exceeds $10,000
Plus $50 for the probate Order
Northwest Territories
$25 for estates under $10,000
$100 for estates between $10,000 and $25,000
$200 for estates between $25,000 and $125,000
$300 for estates between $125,000 and $250,000
$400 for estates worth $250,000 or more
Nova Scotia
$70 for estates under $10,000
$176 for estates between $10,000 and $25,000
$293 for estates between $25,000 and $50,000
$820 for estates between $50,000 and $100,000
Plus $13.85 for each $1,000 (or part of $1,000) by which the value of the estate exceeds $100,000
Nunavut
$25 for estates under $10,000
$100 for estates between $10,000 and $25,000
$200 for estates between $25,000 and $125,000
$300 for estates between $125,000 and $250,000
$400 for estates worth $250,000 or more
Ontario
$5 for each $1,000 for the first $50,000
Plus $15 for each $1,000 (or part of $1,000) by which the value of the estate exceeds $50,000
Prince Edward Island
$50 for estates up to 10,000
$400 for estates from $10,001 to $100,000
Plus $4 for each $1,000 (or part of $1,000) by which the value of the estate exceeds $100,000
Plus closing fee of 0.2%
Quebec
$0 for notarial wills
$65 for non-notarial wills
Saskatchewan
$7 for every $1,000 (or part of $1,000) of estate value
Yukon
$0 for estates up to $25,000
$140 for estates that exceed $25,000

103 comments:

  1. Hi,
    I have a quote of $2,500 cost to probate a single piece of property in Canada worth $25,000. Is this reasonable?
    Thank you

    ReplyDelete
  2. Prices for probate vary place to place, as I've said in the above post, but yes I think that quote is reasonable. I would suggest that you make sure you understand whether this quote is JUST the probate, which takes the property out of the hands of the deceased and into the name of the estate, or whether it is the probate PLUS the transfer out of the name of the estate and into the name of a beneficiary or buyer. In law these are two distinct steps. Most lawyers will charge you additional fees for the second part of that transaction.

    Also make sure you know whether that $2,500 is "all-in", meaning fees, disbursements and taxes are all included. Most lawyers will quote you a fee, then add on the disbursements. In your case the disbursements would include a court probate fee, fees at the Land Titles Office and the usual disbursements like photocopies. Ask questions to find out exactly what your disbursements will be and whether they are included in your quote. Also find out whether there will be GST or PST.

    In looking at what it costs to probate a $25,000 estate, you have to take into account the lawyer's fee and the probate (court) fee.

    In Alberta, lawyers base their probate fees on a suggested fee schedule. Using this schedule is voluntary so lawyers can charge more, but most do not. The fee schedule says that to apply for the probate, a lawyer can charge $2,250 + 1/2 % of the estate (because the value is less than $150,000). So that adds up to $2,250 + $125, which equals $2,375. That's pretty close to the $2,500 you were quoted even before the probate fee is added in.

    I can tell you that as a general rule, lawyer's fees are higher in larger cities and lower in smaller towns, so take that into consideration when reading this answer.

    Hope this helps!
    Lynne

    ReplyDelete
  3. My father just died. I have been PoA and am sole executor. There are a few small bequests and the residue of the estate (no property) is to me and my sister. Although it is a reasonable size, it is pretty straightforward, consisting of about 4GICs and an income fund. I had already done most everything necessary to wind up his affairs short of filing for probate and the final tax bill before I called an estate lawyer. The lowest estimate I got is $17,500, two others for upwards of $35,000. This seems ridiculous to me. I understand it relates to the 1% but I can't see that there is anywhere near 40-plus hours' worth of work.
    Is filing for probate so difficult that I couldn't do it myself?

    ReplyDelete
  4. If you decide to apply for the probate yourself, you have an advantage over many others who take that step, simply because you are already so familiar with your father's assets and debts, having acted under his Power of Attorney.

    If you go into this with your eyes open, you can probably do it yourself. Just remember that the paperwork involved is plentiful and meticulous. It's time-consuming. It's not the kind of thing where you can just leave blanks empty if you're not sure what goes in them.

    To my knowledge there is no Probate Kit or Guide available to Albertans, though I am in the process of preparing one that will be available through Self-Counsel Press in the spring. Since you can't wait that long, I suggest you contact the Queen's Printer and purchase a set of probate templates.

    You will have to fill in all of the documents and schedules, sign them, get them commissioned and then file them with the Clerk of the Surrogate Court, which is part of the Queen's Bench of Alberta. At that point you will also pay the court fee, which will be in the range of $200 to $400 depending on the value of the estate.

    The Clerks who work there are very knowledgeable and helpful, but they are also pretty strict, and they won't give your application to a judge until they deem your documents to be ready. Be prepared for your application to be rejected at least once before you get it through.

    I'd like to give you a tip that will save you headaches. When you fill in the inventory (the NC7 document) make sure all values that you include are the value as of date of death. For example, don't use a bank statement or GIC statement that shows the balance as of a month ago. This goes for debts too. Most people neglect to put down the debts that were owing on the date of death because they've "already paid it". Even if you have paid it, it was still a debt on the date of death and it has to be included. So do funeral expenses.

    This is more important than you might realize, as the exact value on the inventory is used for doing tax returns.

    Best of luck with it. Let me know how it turns out.

    Lynne

    ReplyDelete
  5. Thank you for the above information. I shared a joint account with my father and I understand that joint accounts are not part of probate. All his debts, including the funeral expenses are paid out of that account, which is substantial. Is it therefore permissible to enter "none" in the item about debts?

    ReplyDelete
  6. Hi Marge,
    The inventory that you have to complete on an estate must give a snapshot of your father's financial picture on the day he passed away, therefore you have to list any debts that were payable on that day. This is true even if they have since been paid.

    Funeral expenses are a bit of a different creature. There was no debt for funeral expenses on the day your father passed away. However you have to show them as a debt on your inventory.

    You are right that joint accounts are not normally shown on an inventory. Be careful with this joint account. The law regarding intergenerational accounts, such as yours, is changing. Sometimes, when the right to survivorship is challenged by another beneficiary of the estate, the courts are requiring the surviving person to pay the account into the estate to be divided. What happens in your case will depend on the specific facts.

    Joint accounts between parents and child are common, but extremely dangerous and troublesome to estates.

    Lynne

    ReplyDelete
  7. Hi Marge,

    My mother just passed away and the only inheritance is her house. I am the executor of her will (I was her POA as well). My brothers and I are the only inheritors and there has never been another will written as we were given a copy when it was originally written.

    Do we have to probate the will? We are not in disagreement of anything. We have a small account with monies to pay any personal taxes and house taxes and bills until home is sold.

    Char

    ReplyDelete
  8. Hi Char. It's certainly refreshing to hear about an estate where everyone is agreeing on things. Kudos to you and your brothers! As for whether you need probate, that depends on the title to the house. If it is in your mother's name alone, then yes you will have to apply for probate.

    Lynne

    ReplyDelete
  9. Hi Lynne,

    My grandmother died in BC with a very small estate. The only intangible asset she held with any value was a mineral right title in Alberta. I have 2 questions: 1) Does her estate need to go through probate in BC and Alberta, or will Alberta recognize BC's probate order? and 2) There were no liquid assets in her estate, so how do the probate fees get paid? If the executor pays for them, how would they be reimbursed?

    Thanks in advance!

    ReplyDelete
  10. As you may know, a mineral title is treated as real estate. If the estate has already been probated in BC, you will likely have to re-seal it in Alberta. The provinces don't generally accept each other's Grants of Probate. If the estate wasn't probated in BC - and you mentioned the estate is small so perhaps it wasn't - then you may be able to appy for probate in Alberta but not BC. The Alberta rules of court state that the probate should be applied for where the person resided at death, but that it's also permissible to apply where the deceased didn't live, but had property.

    Paying the fees might be a problem. If there isn't any money in the estate, then there isn't anything to reimburse the executor. Normally in a situation like this, the asset in question is sold to pay expenses and debts, as they must be paid before any beneficiaries receive anything, but it's pretty hard to sell a mineral title.

    Lynne

    ReplyDelete
    Replies
    1. Why is it "pretty hard to sell a mineral title" or did you mean a mineral title is hard to part with ?

      Delete
    2. Actually, both of those meanings are true, though what I meant was that it can be logistically difficult to sell a mineral title. There is the question of agreeing on a value, and the question of finding a buyer when a title isn't producing.

      I have noticed that people are very reluctant to part with mineral titles, because they are all pretty sure that the well is going to make them rich one day.

      Lynne

      Delete
  11. Thank you so much for the quick response - very helpful!

    ReplyDelete
  12. Good morning Lynne,
    Our mother passed away last week. There are only two surviving children which is my sister and myself. We are both named as executors. Her estate consists of about $80,000 in investments with her insurance company. My sister and my mother had a joint bank account so that my sister could pay bills etc. We had set up transfers from her investments on a monthly basis to cover her expenses. My question is, do we have to go through probate or could we just transfer the balance of the investments to my mothers/sisters account and then distribute according to the will. Everyone is in agreement. Thank you for any advice you my have.
    Jerry

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  13. My mother is in a nursing home, I am the power of attourney general and personal, she made a will in 2007 but I am unable to find it. I don't know if she is competent to do another...what happens now? Am I still able to all things such as sell the home under the power of attourney general since she is still alive

    ReplyDelete
  14. Hi,
    If your mom's will can't be found and she can't make another, her estate will end up being distributed according to intestacy laws of your province or territory. You or one of your siblings might have to apply to the court to be appointed as administrator of the estate.

    Before giving up on finding the will, make sure you've looked absolutely everywhere - the bank safe deposit box, the lawyer's office, the person she named as executor, drawers and closets at home. Perhaps look at her cheque book or credit card statement for 2007 to see if you can see an entry for paying a lawyer - that way you may find the original will, or at the very least a copy of it.

    When an original will can't be found, it is sometimes possible to probate a copy (ask a lawyer for help if you plan to do that).

    In the meantime, the lack of a will doesn't impact your ability to act under the Power of Attorney. The will doesn't do anything while your mom is alive. If your mom is not going to be living in her house again, yes you can sell it and invest the sale proceeds in her name. Once your mom passes away, you will no longer have legal authority under the Power of Attorney.

    Lynne

    ReplyDelete
  15. Hi my mother passed away last week, she had a valid will and had pre-arranged her funeral and paid for it. Her only assets are her home,chequing/savings account and a small life insurance policy.
    She did not will the home to any of her 4 children. Her estate went into probate, therefore the estate is to pay for utility and tax bills. My mother had no debt. My question is does the house need to be sold for the estate to be settled and the will to kick in? My brother lived and took care of my ailing mother for the past 10 years. I would like to give him time to grieve and make futur plans to establish himself elsewhere. I don't understand why her estate went into probate because she owed nothing. Is it possible to by-pass the sell of the house to settle the estate if all 4 children are in agreement? By the way, I am not executor of the will, I just have concerns that my mom's last wishes be honoured.

    ReplyDelete
  16. Hi,
    I'm sorry to hear about your mom. But I'm really happy for your sakes that you and your siblings are talking and managing her estate amicably.

    The reason your mom's will went through probate is that she owned a house. The house can't be sold or transferred to the kids or anything else without probate.

    It sounds as if your mom's will left the estate equally to the four children, leaving it up to you as a group to decide on the distribution of individual assets. This means that you do not have to sell the house if there is enough money to pay expenses and taxes without selling it. In the meantime, the title to the house will either sit in the name of the estate for a while or will be transferred into the names of the children.

    Leaving the house in the name of the estate for a matter of months while your brother collects himself and makes plans doesn't worry me. But if it is left in the name of the estate for too long, problems may arise, particularly if the executor of the estate should pass away.

    If you are all agreed, you certainly can put the house in the name of all of the children and agree not to sell it. However, before you do that, go to the blog post about joint tenancy and read the comments there to understand the kind of problems that almost always arise from this kind of arrangement. How long will it be before someone wants to sell his/her share while the others don't want to sell, or someone realizes that if they pass away there is nothing to hand on to their children, or wants to move in to "their share" of the house?

    It may seem simple to put all names on because all you do is sign a piece of paper, but believe me, unwinding the arrangement is signficantly harder. Think carefully about it and talk it through thoroughly with your siblings before you all agree to this.

    Best of luck with the estate.
    Lynne

    ReplyDelete
  17. Lynne
    My father and mother recently passed away a few days apart. They both had wills, and named me as Executor. Both wills have a clause disenheriting my sister and her children, which leaves me soul beneficiary. So far my sister and I are working amicably, dividing mememtos without dispute, but she has made comments that her children should be getting more than momentos. I will be applying for probate. The estate is not large - under $350,000, but I do fear that my sister will possibly object that she was disinherited.
    I am confident that I can submit the probate application forms myself (waiting for your book), but was wondering if you recommend I hire a lawyer to prepare me for if my sister objects. Or rather - would you recommend I wait the 6 months after probate is granted to see what she does?

    thank you

    Lisa

    ReplyDelete
  18. Hi Lisa,
    If you were to see a lawyer before submitting your documents, it would make no difference to the application for probate. The documents wouldn't be any different. If your sister is going to object, she will do so after you file for probate. She will have to file documents of her own setting out her claim. So I think I'd go ahead and apply for probate.

    Having said that, it wouldn't hurt to know which lawyers deal with estate disputes so that if she does file something later, you can act quickly.

    Lynne

    ReplyDelete
  19. Hi Lynne

    My Mother's only asset is a joint bank account with me. I have POA and am her Executor and have looked after her financial affairs and other needs for many years.

    At the time of her death I would like to pay the bills, file the taxes, and divide the remainder with my two brothers(the will calls for equal division of assets between the three of us).

    I have a good relationship with my brothers and the amount involved is not significant to any of us. They are agreeable to this course of action. I recognize that they could challenge this action at a later date and am willing to accept that risk.

    Is this course of action legal?

    If there are no assets beyond the joint bank account is there any need to probate the will?


    Thank you,

    ReplyDelete
  20. Is there a list that states exactly what debts can be listed, and which ones cannot, on the NC7?

    ReplyDelete
  21. HiLynne, we are living in B.C.

    My mom has a house that the value is way higher than the time she bought. Q1. if she wants to give it to me and my sister, we both living in the house, before anything happen. Will that trigger any tax. capital gain etc.. Q2. if she leave it asis, what it will be happened if she pass away with the will for equal to us. As we sell the house or not, what is the different? Thanks for your time.

    ReplyDelete
  22. Hi Lynne,
    Your blog is very informative.
    I live in BC and my mother passed away recently. She had invested in some commercialy property with my cousin's firm (her nephew). A number of months before her death, my cousin sold this property and then held the funds for her while he looked for another suitable investment. Then a couple of months before her death, my cousin had found another commercial investment and the paperwork was put into the names of my brother and me. (not anything joint with our mother and she agreed to this)This was done as it was obvious my mother was quite ill and we wondered how long she would last)Since this asset wasn't in my mother's name at the time of death, is it subject to probate fees? Thanks for your time!

    ReplyDelete
  23. In Nova Scotia is there a time limit to probate a will. My sister and I were left a farm and she is the excecutor but has not probated the will in six years. She and I are to go halves on the expense of this but she keeps putting it off. How should I handle this and what if one of us dies in the mean time?? Thank you

    ReplyDelete
  24. I understand probate costs depend largely on the product of all the value of the contested will, legal fees and of course your attorney's rate, which varies per state.

    ReplyDelete
  25. My Aunt passed away a few months ago in BC. The executor of the will was her sister who had passed away a year before. The beneficaries are myself, 2 other nieces and one nephew. I am applying to become administrator (all others are in agreement with this). My question is how do I prepare a statement of assests (as part of the application process) when the financial institutions will not deal with me until I am the administrator? Also, do I only pay for the administration application or am I required to pay on the value of the estate? I am trying to do this on my own and am using the BC Probate Guide for information on administering an estate.

    ReplyDelete
  26. Thanks for your posts, I'm sure it really answers a lot of questions out there!

    And I agree with you, probates are costly, most especially when a person is not paying attention to what is really happening behind the scenes. Even some of us don't know much about legal wills or very few ideas are into our minds we must keep tract of the record and must always communicate with the lawyers... other factors must be included of course, you must ask you most trusted lawyer to find out...

    ReplyDelete
  27. My brother-in-law passed away recently and left a will with my husband as executor. He left everything to his spouse. Since the house was jointly owned it is not part of the estate. Also, his RIF abd TFSA had her as beneficiary on the FI paperwork so again that is not part of the estate, is that correct? The only things then are a small bank account and a small investment account-worth less than $2000. His sole Visa had insurance on it so it was paid out by that (only debt). Is probate required for such a small amount?

    ReplyDelete
  28. I own my home and I am also on title with my mother on 2 other homes--what will happen when she dies??

    Thank you!

    ReplyDelete
  29. A motivating discussion is worth comment. There's no doubt that that you ought to write more about this subject matter, it may not be a taboo matter but typically people do not discuss these issues. To the next! Best wishes!!
    Also visit my weblog ; Single Parenting Guide

    ReplyDelete
  30. I have a serious question about the called Probate: for my husband who died 3/yrs. ago; I was still legally maried and have a child, and according to the lawyer my name has been remove to my husband "Wills" this are the lawyers statements "Probate was granted some months ago, but we don't have Letters Probate yet because the probate fees have not yet been paid." He was refering to months of November 2011. If the representative (executor/executrix, she has the right to take the Bank Accounts, then why the Probate isn't paid?

    ReplyDelete
  31. pt
    My father recently passed away. Does a will have to be probated within a certain time frame (British Columbia)? He has a few term deposits and the bank has frozen all accounts until the will is probated (that's my guess anyways). The excutor has told us he has no idea what he's doing and is going to hire a lawyer. His will states that his estate is divided between 5 children and his common in law wife. I have been told that I will not recieve my full inheritance because I had a loan back in 1995 which my Mom cosigned on and when I moved away she made the payments. She passed away in 1998 so my Dad had to payoff the loan and also that my daughter owed Mom some money so that comes out of my share. The grandchildren are not even in my Dad's will and I don't see why I have to pay for her.
    Any info would be helpful
    Thanks
    PT

    ReplyDelete
  32. Hi , Lynne
    My aunt left a will and probate has been thought n distribution of funds has been receive. My question is about residue which is left to my twin both 16yr old children . The trustee is the executor . How soon does they take to settle or close the case n dustribute whatever is left over ? And do trustee pass over the funds to the guardian which is the mother

    ReplyDelete
  33. Hi Lynne:
    My sister just passed away and she was listed with myself and another sister on some mineral rights in Alberta. Everything else was joint with her husband except for this. What happens if we don't probate her will to put her husband's name on the mineral rights? Will the mineral rights just be divided between the remaining sisters. Thanks.

    ReplyDelete
    Replies
    1. Mineral rights are considered to be real estate and are registered at the land titles office. It's important to find out whether the title between you and your sisters is joint with right of survival, or tenants-in-common. You can get an updated title search for only a few dollars at the land titles office. If the title is held as joint tenants with right of survivorship, there is no point probating her will because the will won't affect it. In that case, you would give a copy of the death certificate to the land titles office so that your sister's name is taken off the title and it would belong to the surviving two. On the other hand, if the title is held as tenants-in-common, you will be required to probate the will in order to transfer the share to your sister's beneficiaries.

      As I've said a million times, it rarely works smoothly when someone puts multiple names on a title.

      Lynne

      Delete
  34. Thanks Lynne - you have been very helpful. All it says on the Certificate of Title is that we are the owners of an estate in fee simple. Should I do a better search at the Land Title office?

    ReplyDelete
  35. My father recently passed away. Does a will have to be probated within a certain time frame (British Columbia)? He has a few term deposits and the bank has frozen all accounts until the will is probated (that's my guess anyways). The excutor has told us he has no idea what he's doing and is going to hire a lawyer. His will states that his estate is divided between 5 children and his common in law wife. I have been told that I will not recieve my full inheritance because I had a loan back in 1995 which my Mom cosigned on and when I moved away she made the payments. She passed away in 1998 so my Dad had to payoff the loan and also that my daughter owed Mom some money so that comes out of my share. The grandchildren are not even in my Dad's will and I don't see why I have to pay for her.
    Any info would be helpful
    Thanks
    PT

    ReplyDelete
    Replies
    1. Hi, I answered your question as a new blog post on Jan 15, 2013, so please check there.

      Lynne

      Delete
    2. Sorry, but how do I view it on a blog. Can't seem to figure it out.

      Delete
    3. Find the "archives" button on the right hand side of my blog. When you click on it, it brings up a menu of months, so you'll choose January 2013. Click on that, and it brings up the January posts, in order, starting with the end of January. Hope that helps :)

      Lynne

      Delete
  36. Hi my father recently passed away and unfortunately does not have a will. I am trying to wrap my head around of what exactly I need to do (Manitoba) to get things straightened out.

    I've spoken to a lawyer and he has outlined what is required and I do need to give him some more information so that he can start the necessary process but if I am able to do something(s) myself, then by all means I am willing to tackle them.

    Thanks for your help in advance!

    ReplyDelete
  37. Hello--does the fact the house I'm inheriting has been my principal residence affect the probate process? My wife/family and I looked after my mother who couldn't have handled the house on her own. My two brothers have no problem with the will whatsover.
    The house is valued approx $350,000.
    Thx N

    ReplyDelete
    Replies
    1. Hi N,
      I think you may misunderstand the meaning of "principal residence". If your mother owns the house and your name isn't on the title, it's not your principal residence even if you live there. From what you've told me, it looks as if your mother's house will be included in the probate application. Unfortunately, a record of title doesn't really have room for things like who has been helping out, financially or physically. Your mother would have had to address it in her will.

      Lyne

      Delete
  38. My Dad's estate is worth approx 300,000.00 and is to be divided 6 ways. Dad loaned me money years ago. I know that it will be taken out of my inheritance. I owe 20,000. My question is 300,000 divided by 6 is 50,000 each minus my 20,000 so I get 30,000. OR will I have to pay back the 20,000 to make the estate 320,000 then that is divided by six.

    ReplyDelete
    Replies
    1. Hi. No, you don't have to actually repay the money. It's all done as a math equation :)

      You get the $30,000. Then the $20,000 that you repaid on paper is divided by 6.

      Lynne

      Delete
  39. My partner's mother passed away recently (she had been suffering from dementia). There was a large amount of life insurance, but all paperwork for it seems to have disappeared. We suspect that my partner's brother manipulated his mother into signing him as the sole beneficiary of this and then lied (he is the executor of the will) about paperwork. If we have a medical report saying my partner's mother was suffering from moderate dementia at the time the beneficiary of the insurance was changed, can we chase this up, challenge the insurance beneficiary, reclaim half the insurance (the will itself is 50:50 to my partner and his brother)and have it included in the estate (I know life insurance is not usually part of an estate)? I would appreciate any advice you may have for me. Also, if my partner's brother challenges this in court, how much are court fees likely to be? We are very short of money.
    Thank you,
    Margaret

    ReplyDelete
    Replies
    1. Hi Margaret,
      I can't actually tell from your note whether the beneficiary of the policy has been changed, or whether you just suspect that it has. Assuming that it has been changed, and if the money has not yet been paid out by the insurance company, the executor of the estate can send them a letter explaining that there is a dispute about the beneficiary. After looking into it, the insurance company may decide to pay the money into court, rather than to the beneficiary.

      If this is done, there would have to be a hearing in front of a judge to decide who is going to get the insurance money. Obviously the executor will be arguing that it should be paid into court.

      If the money has already been paid to the beneficiary, you will have to start a lawsuit against him to recover the money.

      I should warn you right up front that litigation is never quick and is never cheap. You may or may not be successful based on your evidence, and if you do not win the case, you may also be responsible for paying the legal fees for the brother. Think carefully before you start court proceedings against anyone.

      Your best bet is to try to find a lawyer who offers a free consultation up front (and plenty do this) so you can show him/her the paperwork and get an idea of what you'd be in for.

      Lynne

      Delete
    2. Oops, in that last post, my sentence should have been "obviously the executor is going to argue that the money should be paid into the estate" and not "into court". Sorry!

      Lynne

      Delete
  40. Dear Lynne,
    Thank you so much for the response, it was really helpful. I will discuss this with my partner and caution him about possible costs. I know he doesn't yet have a lawyer, but I know that where we live just outside Victoria (his brother is in Calgary) there are a number who practise, so we can chase up the free consultation advice.
    Thanks again, it is much appreciated,
    Margaret

    ReplyDelete
  41. My father was married 7 times, his last wife left bc to alberta months before my father passed on. My sister was executor of the estate until it was changed within weeks of the death of my father to my stepmother.Some of the blood children of my father wonder if she left with the intent of different laws between alta and bc. Should the natural children of the father be allowed to see any of the two wills. It seems the children of my stepmother have received all of both estates.If we the natural children of the father have an entitlement and were unaware of it how do we proceed?
    Thank you,
    Gary

    ReplyDelete
    Replies
    1. Hi Gary,
      It sounds as if your father lived in BC. If so, the law that governs your father's estate should be BC law, regardless of where his wife lives.

      The general rule about seeing someone's will is that you must be a beneficiary of the will to see it. This is a bit of a catch-22, since sometimes you don't know if you're a beneficiary unless you see it. In this case, a letter from a lawyer formally asking whether you're a beneficiary will generally at least produce a response.

      Generally adult children don't have "an entitlement" to a parent's estate. But because your father lived in BC, you and the other children may be able to take advantage of the wills variation law there. This law allows a court to make changes to the distribution set out in a will on fairness grounds.

      You should be aware that there are deadlines for this and if you have waited too long you may be out of luck.

      I recommend that if you want to know more about challenging a will under wills variation legislation, you contact an experienced estate lawyer and have a frank discussion about the law, the costs and your chances of success. The only lawyer whose name comes immediately to mind for me is Stan Rule. I haven't met him but I see his blog posts all the time and he knows a lot about estates.

      Best of luck,
      Lynne

      Delete
    2. Thank you Lynne, i think the golddigger got it all

      Delete
  42. Dear Lynne,

    Hi! I was given your book on estate planning by my financial planner. However, I am in Sask visiting family now and don't have the book with me.

    My Father and Aunt want me to be the sole inheritor of one asset - a property. My father has an ex-wife and another daughter. In the divorce decree, the property was ruled "not a family asset".

    My Aunt wants to make me a joint owner with survivorship rights. Does that protect me from the ex-wife and daughter? At one time, my father and aunt were joint owners. Now she is the sole owner.

    I want everything to be safe and legal.

    Thanks! Valentina

    ReplyDelete
  43. Hi Lynne, So glad you wrote your book. It's been a great help. Also glad to find the updates to the forms for Alberta. I'm just about done with my application. A couple of questions. NC7: my mom's estate contains a quarter section with leased pipeline and well site surface rights leases from which she derived rent. Am I correct that they are to be included on NC7 as per page 76? Or are the leases that you speak of ones that are leased BY a person that would have produced income? (Does this make sense, or am I brain dead?)
    Second question re NC27. I'm just not clear on what is to be included besides the NC19's. On page 159 #6 and # 10 you suggest that all documents sent must be listed as well as attached to NC27. But in the sample you only list the notices but add the statement that the notices were sent with a copy of the whole application for probate. Does the NC27 then, also need to have listed and attached all the documents of the application for grant of probate as well? (Doesn't make sense to me since the court already is going to have all the whole application for probate anyway.)

    Sure would appreciate your response.
    Thanks, Fred

    ReplyDelete
  44. Hi,

    My mother passed away 8 years ago in Ontario. At the time, she had one bank account, with approximately $1000 in it. The bank wouldn't release the money to myself, or any of my siblings because my mother had no will. We hired a lawyer, and paid him approximately $1000 to get this money from the bank to be distributed among myself, and my brothers and sisters. To this date, he tells me he is working on it, but there is a process, and the money cannot yet be released. Can the process of closing out my mother's bank account take 8+ years?

    ReplyDelete
    Replies
    1. Eight years??? No. Something wrong there.

      Lynne

      Delete
  45. One can always avoid probate to save money. But your information will surely help many readers in deciding the amount of funds required for probate.

    ReplyDelete
    Replies
    1. Very few people can "avoid probate to save money" since most of them take steps without legal advice and end up costing much more in legal fees to fix their mistakes.

      Lynne

      Delete
  46. Glad to discover your website!
    My Dad owns a cottage in Quebec but his permanent residence is in Ontario. Will his estate have to pay the Ontario or the Quebec probate fees on the cottage when he passes away?

    ReplyDelete
    Replies
    1. To answer this question, I'm going to assume that your Dad has a will in Ontario but not one in Quebec, since that is the most likely scenario.

      On his passing, his will would be probated in Ontario and his estate would pay the probate fee on all of his property in Ontario. His will would then have to be re-sealed in Quebec, and his estate would pay for the probate fees in Quebec for the cottage only.

      If he plans to keep that cottage, he might consider talking to a notary in Quebec about getting a will to deal with the cottage. Notarial wills in Quebec don't have to go through probate at all, so this is worth a conversation to see if it would work for him.

      Lynne

      Delete
    2. Thank you so much for your prompt reply!
      When you say "all of his property in Ontario", you mean "all of his Ontario property", right? Not that Ontario takes a fee on "all of his property"?

      I will have him look into it. He is trying to decide between leaving it to me in his will (but how will that sit with my siblings), selling it to me now (but how do you establish a price), or making me a "joint tenant". (I have read your article on that.) Thanks for all your help.

      Delete
  47. Thanks for highlighting the cost of probate. The details will help readers in determining the cost of initiating the probate process.

    ReplyDelete
  48. my grandmother passed away the very day she was to go and sign a new will.in Her old will which im guessing would now be the will used she left a beach property to her grandchild.In the new unsigned will that had been revised and the grandchild was no longer being willed that property.My grandmothers two adult children now want the grandchild to sign off on the willed property or they will contest.What are the laws for this case?

    ReplyDelete
    Replies
    1. The signed will is the one that is in place and should be followed. The new, unsigned will has no legal effect at all. The beneficiary who is receiving the property doesn't have to give up his/her inheritance just because two relatives don't like it.

      Lynne

      Delete
    2. Thank you so much for your help Lynne.

      Delete
  49. Probate costs a lot, there's just so much to pay for.

    ReplyDelete
  50. Hi Lynne
    I am confused about applying for probate in Alberta as an executor. I am trying to save costs and I therefore hired a 3rd party trust company just to prepare those NC numbered documents and draft my affidavit into the right format.I took the prepared drafts and I signed the documents with a local commisioner for oaths in my city. When I took the package of documents in, the court clerks rejected it and said it was not legal to "directly or indirectly" use a 3rd party to prepare the documents. Is that correct? Seems odd as you can buy books to help you out too ? What is this all about?
    Thank you
    Carol

    ReplyDelete
    Replies
    1. Hi Carol
      The problem you've run into is found in paragraph 2 of the NC2 (affidavit) document. You will see the heading "Documents Attached". If you read the sentence, it actually says that the documents were prepared "by me or by my lawyer". That's the part the clerk is having trouble with, as neither of those options is true in your case.

      In my book about preparing your own probate documents in Alberta, I have removed the reference to a lawyer. This does not offend the rules, as you are allowed to do the documents yourself.

      I work for a trust company. We help our clients who need probate by determining what information is needed, finding that info, finding values for assets, getting estimates, investigating assets and debts, etc. However, we do have lawyers prepare the actual probate application if the client does not want to do it himself/herself.

      From here I guess you are going to have to decide whether you are going to do a new set of documents for yourself, or hire a lawyer to do them.

      Lynne

      Delete
  51. Hi,
    I have a question. My grandmother's sister died in March of 2011, followed shortly after by her only surviving child. There was no will, and my Grandmother and her sister will receive a large portion of the estate (which apparently was large when he died). The rest is split between his cousins and other relatives. My understanding is everything is signed off, everyone is paid ie lawyers, taxes. But the deaths were in Quebec and my grandmother is in Ontario. They are waiting for the inheritance to be released. My grandfather has contacted his local MP for help because it seems that Quebec just won't release the inheritance. Is there anything else they can do?

    ReplyDelete
    Replies
    1. You don't say who the administrator of the estate is, but I assume it's your grandfather. Who is handling the estate in Quebec? Did your grandfather hire a lawyer there? I assume that the "signing off" etc that you mentioned refers to a process done through the Quebec courts.

      The fact that beneficiaries live in another province should have absolutely nothing to do with this.

      My guess is that whoever is handling this estate is waiting for the tax clearance certificate. If your grandfather is the administrator, he really should have a better familiarity with what's going on. Has he asked for a clearance certificate? Has he hired an accountant to apply for one?

      He needs a competent lawyer and accountant, not an MP.

      Lynne

      Delete
  52. Hi
    My family lives in Ontario, My mom and dads will leaves the house to all 8 children.My father has passed away.My mom wants to change it and leave the house to only one child can she do that?

    ReplyDelete
    Replies
    1. I think what is going on here is that your father's will actually said he leaves the house to the 8 of you if your mom has already passed away. If your parents owned the house as joint tenants, as the vast majority of married couples do, then the house properly belongs to your mom when your dad dies. He can't give away something in his will that is jointly owned because the right of survivorship overrides the will. Assuming they owned it jointly and it now belongs to your mom, then yes she can change it. It's her house and she can leave it to whomever she wants. There is no law that says a parent must leave anything at all to adult children who are not handicapped.

      Lynne

      Delete
  53. I am from Nova Scotia. My brother passed away. He had a will and in it was a lobster license and gear worth about $200,000. It was left to me. He had no property and no money in any bank account. Does his estate need to be probated?

    ReplyDelete
  54. An Albertan dies with a large stock investment account in BC having invested with a BC investment advisor - does the executor have to reseal the alberta probate in BC for it to be effective to bring the investment account into the Estate in Alberta and therefor pay the high probate fees in BC? Deceased has other property in Alberta but main amounts in this bc investment account. thx Lynne

    ReplyDelete
  55. Hi Lynne
    when a lawyer is hired to probate a will, what does lawyer work includes? what do the probate court search/confirm info?

    ReplyDelete
    Replies
    1. When you hire a lawyer to do probate, you can choose how much help you want from the lawyer. If you simply want the lawyer to apply to the court for the probate, then the lawyer will only do that. You will have to provide all of the estate information (names, addresses, ages, assets, debts, etc) to be used in the documentation. The lawyer will prepare the documents, oversee the signing of them to make sure it's done right, and file them at the court. Most of the time, executors want more help than that; they want advice on how to proceed, advice about legal questions, and sometimes even to have the lawyer do the legwork in defining assets and debts. Usually the executor also wants the lawyer to prepare any notices that have to go to beneficiaries, the legal notice for creditors for the paper, and releases to be sent out at the end of the estate.

      I'm not sure what your second question means, but I think you're asking whether the probate court fact-checks the probate application. No, it does not. The executor swears under oath that the contents of the application are true, so if it comes out later that something is false, that falls squarely on the head of the executor.

      Lynne

      Delete
  56. thank you Lynne and the second question answer was what I meant thanks

    ReplyDelete
  57. Hi Lynne. With a simple will of cash only of approximately $40,000 or less besides probate fee to the court what should be expected for lawyer's fees. This is in Ontario. Is it easy to do alone..only one beneficiary and no debt. Thank you.

    ReplyDelete
    Replies
    1. There is no standard for lawyer's fees. The general way that lawyers are paid is using an hourly rate that depends on his or her experience, but some lawyers will quote a flat fee for preparing a probate application. If the estate really is very simple, you can try doing it yourself. On the "interesting links" section of my blog you'll see a link to an Ontario probate kit. Just remember that if you get started and get bogged down, it's not too late to ask for help from a lawyer.

      Lynne

      Delete
  58. I am desperately trying to get help to answer a few questions. My Father passed, he had no property, a very small amount of savings (under 1K) and little assets (like personal effects and a tiny bit of furniture which is not of any substantial value and will possibly be donated) and has sizeable outstanding debt that he was not able to pay to several banks. There are beneficiaries named in his will. We cannot afford a lawyer in BC/Vancouver, we're in lower income bracket but we are the executors. We have tried reading books, searching libraries and calling help lines and to be honest we're afraid of what will be done to us since we don't know the first thing about filing probate letters, and even posting ads in a newspaper is extremely expensive, is there any place that a person can go to get help for free that you may be aware of in Vancouver, BC?

    ReplyDelete
    Replies
    1. Nothing will be done to you. You are not personally responsible for your father's debts. As executors, you must make the most of his estate so that you can pay off as much of the debt as you can, but you don't have to put up your own money. You are not legally required to post a notice in the paper. Nor are you required to file for letters probate (unless you want that, so that you can file an inventory for the creditors). It seems highly unlikely that the beneficiaries are going to get anything, as creditors must be paid first. If there isn't enough money to pay all of the creditors, consider making a pro rata payment that pays a certain amount on the dollar to each of them. Make sure that any funeral expenses are paid first. If your father worked for wages at any time during his life, make sure you apply for the Canada Pension Plan death benefit. It isn't a lot, but it's $2500 you don't have now. If he was getting any kind of private pension through a former employer, call them to see if there is a death benefit attached to the pension. Also check his paperwork thoroughly to see if there is a life insurance policy anywhere.

      As for free legal advice, yes, there is some out there. When I went to law school in Vancouver, we ran a free legal clinic where the students helped real clients, under the supervision of lawyers.

      Take a deep breath, and hang in there :)

      Lynne

      Delete
    2. Thank you for your advice Lynne. My concern is that even with the Canada Pension Plan Death Benefit, lets say $1500.00 and the debts are around 60K, I don't know what kind of proposal I could draft up that would possibly pay off his debts to them. And I was wondering if I have the right to donate his wheelchair however the family believes that I should have to pay for it's move, storage and that I should have to sell it. I wanted to donate it to someone in need and get a tax receipt but they don't agree and are badgering me with calls. There is nothing in the will to say that I can't donate it, and I've spent four days trying to find a consignment place but it's a no go. My Sister says they will sue me if I do this. I am still checking for legal clinics and noted there is legal aid for family court or criminal court but not for this type of issue. Again, my thanks for replying!

      Delete
  59. Main asset in estate, undeveloped real property in BC now on the market for $200,000. Elderly client paid $3,000 in disbursements plus $7,000 in lawyer's fees. Received another bill for $8,000 in lawyer's fees after probate was complete. Client was executor. Client now named in small claims lawsuit against estate. Has no money to hire a lawyer to challenge this. I'm not an expert in estate matters but $15,000 is TEN TIMES the fees I normally see with low income clients. I work in a legal aid office and legal aid does not provide any assistance for estates. Any ideas?

    ReplyDelete
  60. my sister challenged the POA for our mother and is now charging our mother's estate for the cost of the challenge. Is this legal?

    ReplyDelete
    Replies
    1. When there is a court challenge, the parties can ask the court to decide who pays the costs. If the judge has said that your sister's costs are to be paid from the estate, then yes it is legal. Otherwise, your sister must pay her own costs.

      Lynne

      Delete
  61. Hi Lynne, our Mom passed away in Dec. She resided in AB and was living with my youngest sister (house is in my sister's name). Mom had no debts. My sister paid all utilities etc. She only had a Visa bill which had been paid just prior to her death. She owns no property. Her assets are in a major Cdn bank but she also has a small RIF with a QC bank. I should mention the major Cdn branch is also located in QC. Mom had a notarized will from QC. We sisters have collectively spoken to her former QC notary and a will search is currently being conducted. At first, the major bank branch in AB (where she did all her banking) thought this would be sufficient but now their head office want a probate to cover AB. They contend the estate is over 300k. There are no debts even the funeral. I paid for it from my Visa not realizing at the time, the AB bank branch was prepared to release those funds from her account with an invoice. How do you suggest I proceed - I am the executor. We are only 3 sisters in the family, all living in AB and all working together to try and resolve our Mom's estate. Thanking you in advance.

    ReplyDelete
    Replies
    1. Given the value of the fund in the AB bank, I believe that you will have to apply to the AB court. As you have probably found out already, a will that was prepared by a notary in Quebec doesn't have to go through probate in Quebec. This is the only province in Canada that has a law like that. If it were any other province, the will would most likely be probated in that province and then re-sealed in AB.

      It's sometimes possible to get a bank to release an account without probate, but the amount you mention is at least 10 times the amount any bank would be willing to release that way.

      The fact that there are no debts doesn't factor into it, as there is still $300,000, regardless of whether some of it must be used to pay bills.

      You will have to deal with the Quebec will first, and then the AB situation. You need an estate lawyer who is well experienced as this is a bit of an unusual situation. If you do not know who to contact, let me know where in AB you are and I may be able to give you a couple of names of lawyers.

      By the way, may I add how nice it is to hear from a family who is working together well on an estate? Great stuff.

      Lynne

      Delete
  62. HI Lynne,
    Do Co-Executors need to file for probate together in BC or can one just file.
    Thanks. Kim

    ReplyDelete
    Replies
    1. Hi Kim,
      Co-executors must file together. If one co-executor does not want to act as an executor, he or she can renounce the role by signing the appropriate renunciation form, which would be filed by the remaining executor along with the application for probate.

      Lynne

      Delete
  63. Hi Lynne,

    I live in Toronto, Ontario and about to start a will. Me and my wife have a I year old child and we do know anyone personally that can act as executor for the will in all scenarios. We do however, have family in the states and some of them can act as executor but we are ware of the bond costs and so are wondering how much would the bond be if we selected a family member from the States to be our executor.

    -Thank you

    Toronto familt

    ReplyDelete
    Replies
    1. The bond would be for the full amount of your estate. I really couldn't say what the premium would be for that bond, as that would depend on several factors.

      To avoid the need for a bond, you could name a trust company here in Canada as your executor. Alternatively, you could name your American relative together with a trust company. Then there would be no bond issue.

      Lynne

      Delete
  64. You can avoid the probate fees that solicitors charge by gaining probate yourself. However many people find bereavement a stressful time, and some would rather not learn the intricacies of administering the estate when they are feeling the loss of someone close to them. Most choose to employ a probate solicitor or other professional.
    probate law NSW

    ReplyDelete
  65. Hi, my sister wrote a will in 2006 which made my daughter the beneficiary to everything she had (to be put in trust).
    My sister changed her will in November 2013 following the news that she was terminal with cancer.
    My sister just passed away this January 2014. Upon reading the new will that my sister wrote in Nov. 2013..we discovered that the entire will changed where instead of giving my daughter anything, she gave her entire estate away to 10 friends and took my daugher completely out of the will. My daughter is 10 years old. My question is, do I have a right to contest my sisters new will (on behalf of my daughter)? There was no reason written or otherwise for the dramatic change??

    ReplyDelete
    Replies
    1. Dramatic changes can be startling, but there is no obligation on a testator to explain why she changed her plans. This is one of the reasons I tell people that they should consider carefully before divulging the contents of their wills; it can lead to disappointment and thoughts of litigation.

      When people make a will, it is usually with the thought that it will be needed "one day", hopefully far into the future. They don't know what they'll own when that day comes, or what age they will be, or who will be in their life. When all of a sudden a person finds out that someday has arrived, it's not unusual for them to make changes to their wills.

      As long as people are of sound mind, they can change their wills as often as they like.

      I don't see anything in your note that would lead me to believe that there is a right to contest the will. Your daughter is not a financial dependent of your sister. Your sister has no obligation to children who are not hers.

      Lynne

      Delete
  66. I'm Executrix for my sister's estate in Victoria, BC. She passed 1/3/2014. How long may I wait to file for probate?

    FBZ

    ReplyDelete
  67. A will is a written document that sets out a person’s wishes about how his or her estate (including property, money, and personal belongings) will be distributed after he or she dies. Powers of attorney depend on which state or territory you are in: they can refer to just financial powers, or they might include broader guardianship powers. You will need to check with your local Public Trustee.

    ReplyDelete
  68. My sis-in-law is POA and executrix of both of her parents estates. Mother just passed away and her father is still living here in Ontario. Day after the funeral she told her 2 siblings she is taking out $20,000 for her personal use. She also claimed bankruptcy a few years ago. Does she have the legal right to take the money out of her father's account without his knowledge and can she be a POA then Executrix of her fathers will if she claimed bankruptcy?

    ReplyDelete
    Replies
    1. A person who is still in bankruptcy and hasn't been discharged should not be acting as a trustee. If she has been discharged, the former bankruptcy is now irrelevant.

      Can she just take money out of the estate for personal use? Nope. I hate hearing these stories about executors who think they won the jackpot when they were named as executors. It isn't her money. The siblings should insist that it be repaid immediately. If she refuses, they should consider asking her to resign as executor. My feeling is that if $20,000 is gone within two days, there is going to be one heck of a lot of money missing by the end of the estate. Not to mention a hell of a struggle to get her to provide an honest accounting. She sounds like trouble.

      Lynne

      Delete
  69. My mother passed away at the beginning of May. She had a safety deposit box at a credit union. When my sister and I, as co-executors, went to the credit union to view mom's box, we were told that we had to request access from the Estate department of the credit union. we were told it would take 3 weeks. it has now been a month and we have not heard back from the bank. is there any reason why we should not be allowed access to the safety deposit box?

    ReplyDelete
  70. Hello,

    I have a question from my mother in law. She is in a land dispute over a piece of land and most lawyers are telling her it's a lost cause. She has deeds that seem to indicate she is entitled to the land but there is an issue of migration. She wants to know if she should pursue the case in probate court. From what I'm reading here, that would not be the right step for her but I thought I'd ask someone that actually knows what they're talking about. She is not after the entire estate of the deceased. She is just after the land. Is probate court just for settling estates or would it be in land disputes as well. The original issue is from way back in the late 1940s and 50s.

    ReplyDelete
  71. I'm impressed, I must say. Seldom do I come across a blog that's equally educative and
    engaging, and without a doubt, you've hit the nail on the head.
    The problem is something that too few men and women are speaking intelligently about.
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    ReplyDelete

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