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Tuesday, March 15, 2011

Which wills must be probated?

Not all wills need to be put through the probate process. The question is, which ones do and which ones don't? The answer is a bit complicated.

Each will must be evaluated in the context of the deceased and his or her assets. In other words, the decision about probate is usually made on a case by case basis after the testator dies.

It is possible to set up your affairs so that your estate won't have to go through probate, but be cautioned. It's not as simple as you might think. Don't try this without professional help. The number of people who have cobbled together bits and pieces of various probate-avoiding strategies on their own and ended up leaving endless mess and disputes is through the roof. They try to save a few dollars and end up costing their estate thousands in legal fees and taxes.

Whether or not your will has to go through probate will depend in large part on the type of assets (regardless of value) that you own, and how you own them.

Whether you've made beneficiary designations on the assets themselves will be important. For example, you might own a life insurance policy worth $100,000. If you have named a beneficiary, he or she will get the insurance money without need for probate. 

Another example is that you might own an RRSP or RRIF with $500,000 in it. If you have named an individual person as your beneficiary, he or she will get the money from the RRSP or RRIF without any need for probate. However, even this isn't carved in stone. Unless the person you name is your spouse or a handicapped child, your estate still has to pay the taxes on the RRSP or RRIF. You could end up being required to file for probate just to deal with taxes.

You don't need probate to deal with any asset is held as joint owners with a right of survivorship. That type of ownership means that the surviving person keeps the property without a need for probate. The most common assets of this type are real estate and bank accounts. This of course is where most people shoot themselves in the foot. They put their homes and other assets into joint names without giving thought to the consequences. Believe me when I say that it's common - very common - for children whose parents put their names jointly on bank accounts simply to clean out the account. Don't think it won't happen in your family; that's what all those other people thought too.

Don't put any assets in joint names with your child/children without sitting down with an estate planning specialist (not someone who does conveyancing or corporate or criminal law) and talking it through.

One of the main reasons probate may be required is that institutions may have internal requirements. For example, the land titles registry in your province is not going to transfer real estate (unless jointly owned as discussed above) without a grant of probate. Neither are banks, insurance companies or investment houses which hold large sums of money.

This requirement arises because a grant of probate is an order from the superior court in each province or territory that confirms that the will is valid, the executor appointment is valid, and that everyone who follows it properly is indemnified for his or her actions. For example, if a bank pays out $350,000 to the beneficiary named in a will, and has a grant of probate to rely on, someone coming out of the woodwork later on can't claim that the bank paid it to the wrong person.

Another reason that an executor might choose to apply for probate is that the family members are arguing about what to do about the estate. There might even be a question from family members, banks, the deceased's business partners, etc, about whether the will is properly valid. The executor may wish to protect himself or herself from blame and possible liability by having the court confirm the will and the distribution.

The general attitude that I encounter from customers and the general public is that probate must always be avoided at all costs. I couldn't disagree more! There are significantly more estate disasters out there because of people trying to avoid probate than there are for almost any other reason.

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