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Thursday, January 15, 2015

Where does probate take place if you live in one province but have assets in another?

If you live in one province but have assets in another province, where does the probate of your will take place? A reader recently asked me about this, as you'll see below.

"I have accounts in Alberta but I live in British Columbia. Since the bulk of my assets are in Alberta, does my will get probated there, or does it have to be probated where I live?"

This is an excellent question, given the difference in court fees charged by these two provinces. It is much less expensive to probate a will in Alberta than in BC. For example, the probate fee on an estate worth $500,000 would be $7,200 in BC and only $400 in Alberta. Many Canadians move valuable assets to Alberta to take advantage of the lower probate fees.

The general rule is that a will is probated (assuming it is in need of probate at all) in the province or territory in which the deceased ordinarily lived. Keep in mind though that a probate order granted in BC only covers the assets you own in BC. According to what you've told me, this will mean the BC order will cover your home and other assets in that province, but not your assets in Alberta. Your estate will pay BC probate fees only on the assets listed on your BC application for probate.

To deal with your Alberta assets, your executor will have to apply for a separate court order in Alberta, after he obtains the BC order. This is called a re-sealing of probate. While it is not quite starting over from scratch, the paperwork is very similar in scope to the BC paperwork. Though he may attempt to do this on his own, your executor would probably hire an Alberta lawyer to handle the application. Your estate will pay Alberta probate fees on the assets in Alberta.

I take it that you haven't talked through your estate plan with a lawyer local to you, but it would probably be a good idea. You may hear ideas that will save your estate taxes, expenses, and time.

This arrangement is not unique to BC and Alberta. Re-sealing is required between all provinces and territories.




4 comments:

  1. Per BC's Probate Fee Act, you pay probate fees to BC re the "value of the estate", which means the value of all real and "tangible" personal property located in BC, plus, if the deceased was resident in BC, then the "intangible" personal assets, wherever located.

    So if the "assets located in Alberta" means real estae, then you're correct: you wouldn't be paying probate at BC rates on the AB real estate. But if those "assets" = financial accounts through an AB bank or branch, those would still be covered by teh BC probate order, and you'd still be paying at BC rates.

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  2. Lynne, Sorry for the confusion, but my question is as follows. My uncle was named executor in his parents' wills. My uncle's father died, then his mother, and then my uncle. My uncle did not probate his parents' wills, and the house left to my uncle by his parents remained in his parents' names. Since my uncle was named as his parents' executor, does my uncle's executor take over? My uncle's executor said since my uncle was the sole beneficiary, he can sell the house with his parents' names on title. Can he? Thank you.

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  3. HI

    My father passed recently and his will was written in Ontario where he resided at the time. He then moved to Manitoba after the passing of my mother. I am the only child and myself and my daughter are named as trustees. I am unsure of the probate to file. He only owns a house and no other assets at this time.

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    Replies
    1. Hi Tracey,
      If your father lived in Manitoba and his only property is in Manitoba, you should be going through the Manitoba court. If you get a lawyer with some estate experience, you can ask him or her to look at your father's will to see whether it can be filed in Manitoba.

      Lynne

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