Reduce probate fees

Everyone is interested in keeping probate fees low, though a dismaying number of people take steps on their own without knowing whether it's really going to work. Talking to a professional planner is worth it. For example, check out this article from http://www.capitalmagazine.ca/ that gives two really good ideas for controlling probate fees. Click here to read it.

Dad passed away but the house was never transferred to Mom, now what?

Another reader has asked me a great question that should interest many of you. This particular situation arises more often than you might think. Here is the question:

I'm 30 years old and my father passed away when I was 13. My parents were married during this time. When my dad passed the house went to her and we have resided there since. Recently my mom was notified that her mortgage was paid off. Attached to this notice is what appears to be a summary of land title info. I noticed that the title still states his name, but I don't see hers anywhere. Is this a problem? Can we simply go down to the land titles offices and have this info updated?

It isn't a problem, since your Mom is still alive, but neither will it be as simple as "updating" the information.

I suggest you begin by clarifying the information you have. You said that it "appears to be" a summary of the title and that you don't see your Mom's name on it. Go to the Land Titles Office and find out for sure what is on the title. Take the summary with you to provide the legal land description. A search costs only a few dollars and it's essential that you know what you're dealing with.

If your Mom's name is not on the title, then she did not inherit it as a joint owner by right of survivorship. If your parents had been joint owners and the title had not been updated after your father passed, then both names would still appear. If she had been a joint owner then actually it would be just a matter of updating information. Your Mom could sign and swear (or declare) a very brief form, back it up with a copy of your Dad's death certificate, and that would be it.

As your Mom was not a joint owner and you said that the house went to her on your Dad's death, it sounds as if your Dad left a Will. Hopefully this is the case. My opinion is that the executor named in your Dad's Will will have to apply for probate in order to transfer the house to your Mom. This is not a matter of simply updating information; this is an entirely new transfer of title and I do not believe that it can be done without a grant or order of probate.

If your Dad did not leave a Will, your Mom will have to apply to the court to be named as administrator of the estate in order to get a grant from the court to transfer the property. If your Mom passes away while the house is still in your Dad's name, you'll still have to have a grant of probate or administration to deal with the house.

You might also take some time to check that other assets owned by your Dad were properly dealt with. Was there any other real estate, like a cottage or rental property? Were any RRSPs rolled over to your Mom? Are there investments or accounts still in your Dad's name? Was any life insurance naming your Mom collected?

Usually estates are set up so that when a husband or wife dies, the surviving spouse doesn't have to apply to the court for probate. Unfortunately, this leads many people to think that nothing needs to be done. As you can see, sometimes there certainly is something important to be done.

Which assets does an executor deal with and which are outside of the estate?

This reader has questions about the powers and responsibilities of an executor and trustee, and which assets fall within their control. This information is essential to the estate administration process, so I thought I'd cover it here for all to read.

Here's the question:

"When an estate is probated do all assets fall under the probate or can some things be dealt with before hand such as banks, life insurance and investments and if something needs to be done through probate can we proceed at that time? If the executrix/trustee is not a joint tenant of the house, who is responsible for selling the house? Would it be the joint tenant or the trustee?"

Parts of this question are quite clear to me, though I'm not sure I understand the part about dealing with assets "before hand". I'll get to that, though.

All assets owned solely by the deceased fall into the estate. The two types of property that don't fall into an estate are both mentioned in the reader's question. One type is an asset that is jointly owned by the deceased with someone else. The other type is an asset with a designated beneficiary. These are usually life insurance policies, RRSPs, RRIFs and pensions.

Note that this does not include RESPs, which do not go to the child named in the plan, but stay in the deceased's estate.

If the house was owned by the deceased and a joint tenant, on the death of the deceased the ownership passes to the other joint owner. It would be up to the other owner to arrange for the title to be changed. Please note that where the joint ownership is between generations, such as between a parent and a child, this is THE OPPOSITE. Joint title doesn't automatically go to the child joint owner when the parent dies. The child is deemed in law to be holding the title on trust for the estate, and it's for the executor to deal with.

If the house was not held in joint tenancy but was held just by the deceased alone, it becomes part of the estate and it's the executor's job to sell it or transfer it in accordance with the will. This cannot be done before probate is issued by the court.

I'd like to get into the part about dealing with assets before hand. If the question is whether any of the assets can go out to the beneficiaries before the deceased actually dies, the answer is no. To me that seems starkly obvious but I'm asked the question frequently enough to know that not everyone sees it that way. If the person hasn't died, keep your hands off their assets even if they have named you specifically as beneficiary.

Once the deceased has passed away, the executor should advise any joint owners of the death of the deceased and tell the joint owner it's up to them to change the title. The executor should advise life insurance companies of the death of the deceased, and let the insurance company deal directly with the person named as beneficiary in the policy. The executor should also advise the bank that holds the RRSP or RRIF and let the bank deal directly with the beneficiary who will receive the funds. The executor should co-operate by giving copies of the death certificate etc to allow these other parties to get on with the business at hand. Probate is not required for these transactions.

The deceased certainly can - and should - deal with these assets before death by naming the beneficiaries on the life insurance, RRSP etc. During the estate planning process, joint assets and beneficiary designations are part of the same big picture that includes the will and power of attorney. It all has to fit together.

Anyone with this type of question who lives in Alberta can check out my "Alberta Probate Kit" book, as it covers these topics in much more detail.

Frustrating quirk in Alberta probate application

I received a reader question that was posted on one of the threads but that I'd like to share with you. Reader... I understand your frustration!

"I have embarked on the road to DIY probate using the materials included in the Alberta Surrogate Court kit. My first application was returned, due in part to a couple of oversights on my part, but also for reasons not explained anywhere that I could find, which I found incredibly frustrating.
As both inheritor and executor I did not realize that not only did I have to fill out forms NC 19 and 20 for myself to notify myself that I am a beneficiary, I also had to write and sign an acknowledgement that I had received those forms. I was not given the proper wording for the acknowledgement and am now worried that if I don't do it correctly my next submission will also be returned. Since the application and pickup of materials must be done in person it gets to be time consuming and frustrating. I think it is really pitiful that the province provides a kit that is supposed to let the average Joe file for grant of probate, but does not give us the tools to do so. I hope your book will cover this. I have appreciated reading your website which is easy to navigate and very well written. "

In my book, I specifically addressed the issue of serving notice on yourself, which is one of those quirky little details that makes people crazy. The correct procedure is to prepare the NC19 and 20 notices (which by the way can sometimes be combined into one form), add the acknowledgement on the bottom, sign them, and include the originals in the application for probate. Notices served on other people are included in the affidavit of service but this special procedure is intended to avoid you having to serve documents on yourself.

The wording for the application is:
"I hereby acknowledge receipt of notice of the application for probate, including a full copy of the application, in the estate of ____, deceased."

If you've had your application for probate bounced back to you, insert the NC19/20 (with signed, dated acknowledgement on the bottom) into your original application, and re-submit it.

I think the kit provided by the province is intended only to be a compendium of forms, not necessarily a kit with any advice. This is one of the reasons I decided to do a kit for Alberta probate.The forms are not a lot of good without any instructions.

To which assets does probate apply?

I'm often asked by would-be executors to clarify which of the deceased's assets are covered by a probate order and which are not. It would be easy, I suppose, if the answer were simply "all of them", but that's not the case.  The general rule is that the probate will cover everything that the deceased owns, with some exceptions.

One exception is an asset that is owned jointly with another person. Be careful here. Note that the fact that there are two or more names on an asset doesn't necessarily mean that it is jointly owned. When I mention "owned jointly" here, I am talking about true joint ownership with a right of survivorship. This is a legal relationship that is not proved by the fact that multiple names appear, as it is possible for those multiple owners to have other legal arrangements besides joint ownership.

Let's look at an example. If a husband and wife own a house together, they normally buy it in joint ownership with a right of survivorship. This is because the intention is that the house is the family home and when one of them dies, the surviving spouse will continue to own the house and live in it. If the husband, on the other hand, wants to buy a vacation property with his brother, they might decide to hold it as tenants in common. This is because each of them wants to be able to sell their half of the property, and to have their half of the property go to their wife or children should the husband pass away.

How do you know whether the deceased's asset with more than one owner was owned as joint owners or as tenants in common? Read the paperwork. If it's real estate or a mineral title, read the title. If it's an account or investment, read the name on the statement and if that doesn't tell you, call the bank or investment counsellor and ask.

So if you are an executor preparing an inventory of an estate, you do not include assets that were jointly owned with someone else. You do, however, include the deceased's half of an asset that was owned as tenants in common with someone else.

Another exception to the "include everything" rule is any asset with a named beneficiary. The assets you will see most often are RRSPs, RRIFs, pensions and life insurance policies. For example, if a deceased person owned a life insurance policy that he left directly to his daughter, you would not include that policy in the inventory because the money will go right to the daughter and never go into the estate.

An important aside note for estates in which there are RRSPs or RRIFs that are being left to an individual who is NOT the deceased's spouse: the estate has to pay the tax on these assets even though the assets don't fall into the estate. You have to include the tax as a debt of the estate on the inventory.

Are you ready for the exceptions to the exception? You DO include the named beneficiary asset if the asset says it is to go to "the estate" or "my estate". And you DO include the asset if the person named has already died (that would be the daughter in the example above).

Another exception is the RESP. That asset does name a person for whom the money is being held, but that person is not a true beneficiary. By this I mean that on the death of the deceased who owned an RESP, say for his son, the money does not go to the son. It stays in the estate and you do have to list it on the inventory as an asset.

If the deceased was part owner of a business, he or she might have a shareholder's agreement or buy-sell agreement that says the company will buy back the deceased's shares. You do still include those shares on the inventory of the deceased's estate.

As an executor, you have to do a fair amount of digging to find out everything you need to prepare the inventory, which is an important part of your application to the court to obtain probate. I've simplified the rules here as much as possible, but it's not always easy to apply the rules to individual assets on any given estate. If it's just too much for you, remember that you can always ask a lawyer or a trust company for help with the estate.

Where and how do I file an application for probate in Alberta?

In a recent comment on a post, a reader told me that she was having trouble finding information about where and how an application for probate is filed in Alberta. I understood her to mean that she was looking for an address, phone number or other specific information. I thought a few others might be interested in this information as well, so I'm answering the question in this post as well as in the "recent comments" section.

In Alberta, applications for probate are filed at the Court of Queen's Bench, which is always in the local courthouse. In Calgary and Edmonton only, there is a separate counter in the courthouse that deals with Surrogate Matters, which includes probate, so you would go to the Surrogate Court counter (it's a division of Queen's Bench). In all other centres, go to the Queen's Bench counter.

Take your original documents, signed by the executor, together with the original Will, plus a photocopy of everything. Give all of these documents to the clerk. He or she will take a look at this package, and if it seems fine, will keep the originals and put a stamp on your photocopy with the date and a court file number. You won't get the originals back but you will keep the photocopy. You will pay the clerk a fee of somewhere between $25 and $400 depending on the value of the estate.

If your documents are not ok, the clerk will give them back to you and ask you to make corrections. This may mean that you have to come back another day. Once everything is acceptable to the clerk, he or she will give it to a judge. You don't have to appear in front of the judge unless he/she has questions for you or a problem with your application.

This process usually takes a few weeks.

To call any clerk of the court toll-free from anywhere in Alberta, call 310-0000 (no area code needed). Ask the operator to connect you to the Clerk of the Court of Queen's Bench in the town you're interested in. If the file is in Calgary and Edmonton you can ask for the Clerk of the Surrogate Court. If you are checking on documents that you've already filed, quote the court file number you were given when the clerk stamped your documents, as they are filed by that number, not by name.

Those of you who need this kind of information in the future, keep an eye open for my new Alberta Probate and Administration Kit that will be out in spring of 2011.

Steps leading to probate

Despite the fact that we lawyers toss around probate terms all the time, the probate process remains a mystery to many non-lawyers. When I'm giving a seminar, one of my most frequently-heard questions is "what is probate anyway?' So in this post I'm going to give a very generalized list of the steps an executor would take to get probate in Canada, and what he or she would then do with the probate. I say "generalized" because each of these steps includes dozens of smaller tasks. For a more detailed list of executor's duties, see my earlier posting called What are executor's duties?

1.  Find the original Will. Read it to determine who should be acting as executor and who is receiving something from the estate as a beneficiary. Get the evidence you need to establish that the Will was correctly executed.

2.  Prepare an application for probate, either by yourself or with the help of a lawyer. This contains the original Will and several other documents that paint a detailed picture of the deceased, his or her family, and his or her financial situation. List all beneficiaries along with their addresses and birth dates. Perhaps the most time-consuming part of this step is preparing the inventory of the assets and debts. This involves contacting banks, insurance companies, land titles offices, financial advisors, credit card companies and possibly many others to confirm the existence and value of assets and debts.

3.  Notify the beneficiaries of their inheritances. The procedure for this varies from place to place but generally involves sending a prescribed notice by registered mail. While you're at it, it's a good idea to place an obituary in the newspaper, and possibly a notice to creditors.

4.  Submit your application to the court, pay the probate fee, and wait until the court approves it and issues a Grant of Probate. In the meantime, take valuables into safekeeping, check that vacant property is insured, and do communicate with beneficiaries who want to know why it's taking so long.

5.  Open an executor's bank account. Deposit money that comes in and use that to pay the debts of the estate. Keep detailed records. Keep the money separate from your own. Apply for government death benefits and any private benefits available through pensions etc.

6.  Once you have the Grant of Probate, collect in the deceased's assets. Depending on the nature of the assets, this could involve selling a house, transferring a business, collecting proceeds from an insurance company, cashing in investments or many other steps. Settle any disputes (sounds easy, doesn't it?). Set up the trusts directed by the Will. Notify any joint tenants or designated beneficiaries of the death of the deceased.

7.  Get an accountant to prepare tax returns for the deceased and for the estate. Pay the taxes. Request a Tax Clearance Certificate.

8.  Once the Tax Clearance Certificate is received, prepare financial statements for the residuary beneficiaries. Calculate your payment as executor. Calculate how much has to be held back, if any. Calculate what each beneficiary will receive. Provide the financial statements together with releases to residuary beneficiaries. Argue over your fee. When everyone has agreed and signed their releases, pay the beneficiaries and yourself.

This entire process should take you 6 to 12 months (known as the "executor's year").

What if both witnesses to the Will are deceased?

When a Will is sent to the court to be probated, there has to be evidence that the Will was properly signed and witnessed. This evidence is normally given in the form of an affidavit, which is a written, sworn statement given by one of the people who signed their names as witnesses to the Will. After it is completed and sworn, the affidavit is attached to the Will and they are kept together until they are needed.

In most jurisdictions, the affidavit can be prepared as soon as the Will is made. However, it sometimes happens that the affidavit was never prepared. This could be because it was not allowed by law, or because the Will was done long ago before the law allowed affidavits to be made while the testator was still alive, or simply because nobody ever got around to doing it.

This sometimes leads to a situation where a testator has died, and the Will needs to be sent to probate, but there is no affidavit. You will not get a Grant of Probate without it (unless of course you are probating a handwritten Will). If one of the witnesses to the Will is alive and able to sign an affidavit, then he or she can provide the document you need.

Unfortunately there isn't always a witness available. Sometimes both witnesses are deceased, if the Will was made a long time ago. Or it could be the case that you can't locate either of the witnesses, or that the only one you can find has lost mental capacity or has absolutely no recollection of the Will being signed. Then what do you do?

There are two possibilities. You can do one or both of them.

The first possibility is that there was another person in the room when the Will was signed but who did not sign their name as a witness. That person can prepare a sworn statement explaining the situation and swearing that they saw the proper formalities followed when the Will was sworn.

The second possibility is that there is someone who can swear that the signature on the Will is the signature of the deceased.

It would be best if the person who swears either of these documents is not a beneficiary under the Will. It would also be best if the person is not the spouse (legal or common-law) of the executor or of a beneficiary.

What is probate?

Probate is a process of submitting a deceased person's Will to the court and obtaining a court order called a Grant of Probate. Along with the original, signed Will, the executor sends a group of documents that together are called an Application for Probate. The Grant of Probate confirms the validity of the Will, confirms that the executor is the person in charge of the estate, and confirms that all parties, including beneficiaries, creditors, banks, land registries etc, should follow the instructions and wishes set out in the Will.

Some of the information sent along with the Will includes:
- facts about the deceased person's age, marital status etc
- details of the Will and/or Codicil that is being probated
- information about the family of the deceased person
- an inventory of the deceased's assets and debts
- evidence that the Will was properly signed and witnessed
- proof that the executor who is applying is the right person to do so
- a schedule of what each beneficiary under the Will is going to inherit
- proof that notice of the application was given to everyone entitled to it

The above list is simplified, but gives a general idea of what the Application for Probate is all about.

If there is no Will, or the Will is invalid, the person who wants to be appointed as being in charge of the estate will apply to the court for a Grant of Administration rather than probate. Once the person is appointed by the court, he or she has the same authority and responsibility as an executor. The estate would be distributed according to intestacy laws.

If there is a Will that is valid except for the executor appointment (e.g. the executor named has passed away and there is nobody else named), someone may apply to the court for a Grant of Administration With Will Annexed. In this case, the administrator would be appointed to fill the shoes of the executor and would follow the Will's instructions.

When the Application for Probate is filed with the court, there is a fee that must be paid. In the "Links" section of this blog I've linked to a chart of probate fees across Canada. I encourage people to learn about the fees that apply in their province, as I regularly see estate planning mistakes that people tell me were made to "avoid probate". See my earlier blog post here about the pitfalls of trying to avoid probate without proper advice.

Not every Will must go through the probate process. Whether or not probate is required will depend on the type of assets owned by the deceased, how they are owned (joint, individually etc), the value of the assets, the clarity of the Will, and other issues. If anyone contests the Will or if any parts of the Will are unclear, the executor will have to go through probate.

Probate is not a quick process. The gathering of information for the inventory is a slow process. Also, once the documents are complete and filed with the court, you can expect to wait up to six weeks for te documents to be processed by the Clerk of the Court and signed by a judge.

How do I prove handwriting on a handwritten (holograph) will?

When a formal Will is probated, it is supported by a sworn affidavit of a witness who saw the deceased sign. This proves that the Will was actually signed by the right person. With a handwritten (known legally as "holograph") Will, no witnesses are required. So how do you prove that it was actually signed by the deceased and not someone else?

The key lies in the handwriting. You must prove that the handwriting on the Will is the deceased's handwriting. This isn't actually easy these days when nobody actually writes anything any more.

In Alberta, there is a set form called NC9 Affidavit of handwriting of deceased that you must use to prove the handwriting. It will be one of the documents that you submit to the court in your application for probate. Because it's an affidavit, the information in it must be sworn by you, or whoever the person is that knows the deceased's handwriting, in front of a Commissioner for Oaths so that it becomes evidence that the court can use. There are similar forms in other provinces.

In the NC9 affidavit, you will explain how you knew the deceased and for how long you knew him or her before his/her death. You will say how you are familiar with his/her handwriting. For example, you might have written letters to each other, or you might have exchanged written recipes.

If you're having trouble finding samples of the deceased's handwriting or signature, get creative. Where would he or she have written something down? Did he or she have a bank account where he/she gave a sample signature? Can you find out about letters or cards he or she might have written to someone else? Did he/she sign things at work (invoices, letters, work orders) that you could use to compare?

If the holograph Will does have a witness, that is the best evidence of all, though it is rarely available.

If the executor won't apply for probate, is there anything you can do?

It's the job of the executor(s) named in the Will to apply to the court for a Grant of Probate of the Will. Sometimes, however, the executor refuses to do so, and also refuses to renounce. Usually this is due to family politics, or the fact that the executor stands to lose some benefit once the estate is distributed.

This leaves the estate at a standstill, and beneficiaries waiting around. Usually this is followed by a breakdown in family harmony. While executors have a right to apply for probate, they have to remember that beneficiaries have rights too. The executor has a legal responsibility to administer and distribute the estate.

If an executor has a legitimate reason for the delay, he or she should communicate that to the beneficiaries and keep them up to date on the progress of the matter. Even a legitimate reason eventually runs out. For example, if the executor is ill and cannot work on the estate right away, no doubt the beneficiaries would be patient and allow him or her time to recover. However, if it becomes apparent that the recovery is going to take years, it would be better for the estate if someone else took over as executor.

Communication is very important on an estate. It could be that the executor is managing to deal with the estate without applying for probate, and that things are actually further along than the beneficiary realizes. In that case, the executor needs to keep the beneficiaries informed. Most executors don't actually understand that the residuary beneficiaries of an estate do have a legal right to be informed about what's happening with the assets.

So what can a beneficiary do in a case where there is no legitimate reason for the delay, and the executor just flat out refuses to apply for probate?

Provincial laws allow "any interested person" to apply to the court for directions on an estate.

The phrase "interested person" has a legal meaning, and doesn't just refer to anyone who finds the estate interesting. It means a person who has a legal stake in the estate, in other words the beneficiaries or creditors of an estate, or someone who wants to bring a claim such as a spouse who is left out of the Will.

When you make an application for "directions", you are basically telling the court what's happening (or not happening) and asking for the court's advice and direction on how to deal with it. The court has quite a bit of power to make pretty much any order that it thinks is reasonable and fair in the circumstances. For example, the court might direct that you or another beneficiary should bring an application for probate, or that the executor apply within a certain number of days. There could be other orders as well, if there are assets that are in danger or minor children living without financial support. Don't forget that the court will hear the executor's side of the story as well.

You will definitely need the help of an experienced estates lawyer to make this application successfully.

Can a lawyer act for an executor and for the beneficiaries?

When there is a lawyer acting on an estate, he or she has usually been hired by the executor to handle the probate of the Will and sometimes the administration of the estate as well. In a case like this, the lawyer is acting for the executor. The lawyer's loyalty is to the executor, who in turn represents the estate.

A lawyer can act for the executor and the beneficiaries at the same time, but has to be careful about conflicts of interest. For example, a very common situation is one in which a man dies, leaving his wife as the executor of his estate, but he doesn't leave her the entire estate. The wife hires a lawyer to probate the Will. The lawyer knows that the wife can apply to the court to get more of the estate. The lawyer could not act for the wife with respect to the application for more of the estate, but he or she could act for the wife on the probate. Any executor who is making a personal claim against an estate like this is wearing two hats - one executor hat and one personal (beneficiary) hat - and will likely have two lawyers.

The estate lawyer cannot represent anyone whose interest is, or could be, adverse to the well-being of the estate (for those of you who are into research, this is set out in the Alberta Lawyer's Code of Professional Conduct, Chapter 6, Rule 2, Commentary 2.4).

Most of the time, the beneficiaries don't want or need their own lawyers because things go along smoothly. They would probably hire a lawyer if they wanted to dispute what they were getting under the Will, if they needed an answer to a legal question (such as, was the joint property really joint property), or if they need to do something about an executor who is fraudulent, negligent or otherwise acting suspiciously. Other than that, beneficiaries usually have no need for their own legal representation.

But beneficiaries need to realize that the estate lawyer will do, on the instruction of the executor, what he or she thinks is best for the estate, even if that is not necessarily what any individual beneficiary wants. An individual beneficiary cannot instruct the estate lawyer to do what that one beneficiary wants. That would be chaos.

In most estates, there is a lawyer who represents the estate and is frequently the only lawyer involved in it. When beneficiaries receive the final accounting at the end of the estate and are being asked to sign off on it, they sometimes consult an estate lawyer for a couple of hours just to review/interpret the accounting and to ensure that all is in order.

What is "resealing" probate?

"Resealing" is the process of having the local provincial or territorial court confirm a Grant of Probate from another jurisdiction. Usually when a person passes away, the Grant of Probate that is obtained from the court is sufficient to deal with all of the assets the person owns. However, when there is real property (land, house, cottage, mineral rights, etc) in another province or territory, or assets of any kind in Commonwealth countries, the Grant of Probate is not enough.

For example, a Grant of Probate from Alberta is not sufficient to transfer land in Ontario. The Alberta Grant of Probate would have to be resealed in Ontario.

I've had to obtain resealed Grants in England, Scotland and Isle of Jersey and in each case it was time-consuming but went smoothly. It's not something you would try to do without legal assistance.

The process is very similar to applying for the original Grant of Probate. It can't be exactly the same, because the original Will is not available, having already been submitted to the first court. The other difference is that the first Grant of Probate would have included a detailed inventory of all kinds of assets and debts. The resealing application will only address the real property (and any related debts etc) that is in the new jurisdiction. This means that the probate/resealing court fee is usually significantly smaller than the original application.

Canadian courts will reseal Grants of Probate from all Canadian provinces and territories, as well as all Commonwealth countries. Commonwealth countries will reseal a Grant of Probate from Canada.

Does every Will have to be probated?

This is one of those questions that I am asked over and over again, so I thought I'd mention it here. The short answer to the question is "no", but that doesn't tell the whole story.

Probate is not needed to transfer certain kinds of assets. Specifically, you do not need probate to transfer property that is held in joint names. This is because joint ownership carries with it a right of survivorship of the other owner(s). For example, if a husband and wife own their home jointly and the wife passes away, the husband owns the house by right of survivorship and doesn't need probate to put the title in his name alone. Take note that this rule does not necessarily apply to assets that were jointly owned by the deceased and his or her children.

You also do not need probate to transfer assets that have a named beneficiary. These assets include RRSPs, RRIFs, life insurance policies, pensions and some other assets. When the owner of the asset passes away, you only need to provide a Death Certificate and some information in order to transfer that asset to the person who is named.

Because of these rules, it's quite possible, and in fact is the norm, that a husband and wife can set up their financial affairs using joint property and beneficiary designations so that when one of them dies, the other one does not need to go through probate.

For anyone who is not in that situation, and whose assets are not all going to pass to someone automatically due to joint tenancy or beneficiary designation, the question of whether probate is needed is going to depend at least partly on the type of asset they own.

If you own real estate in your own name alone, or if you own it as a tenant-in-common, your executor will need a Grant of Probate to transfer or sell your property.

If you have assets that will form part of your estate after you die, such as life insurance policies and RRSPs that name your estate as beneficiary, your Executor will need to get probate. This also applies to any assets held in your name alone, such as a bank account, investment, or expensive personal items (e.g. art collection).

If you have a significant amount of money in your estate, your Executor will need probate before he or she can gain access to it.

There are other, less common, reasons why executors must go through probate. For example, the executor might have to finish litigating a lawsuit on behalf of the deceased. There could be a dependent who wants to make a claim against the estate. There could be some question about whether the Will itself is valid or some of its terms might need to be clarified.

It's sometimes hard to tell right at the beginning of an estate whether or not you need to go through the probate process. Sometimes the only way to know for sure is to take the Will to an experienced lawyer, together with information about the deceased person and his or her assets, and ask for an opinion.

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Does Your Will Need to be Probated?

A question that I've been asked by dozens of clients over the years is whether their Wills will have to be probated after their death. Though I'm sure everyone wants a simple "yes" or "no" answer, unfortunately it's not that simple.

There is no law that says every Will has to be probated. Whether or not your Will will need to be probated after your death will depend on the type of asset (real estate, cash, investments, business, etc.) you own and how the assets are held (joint names, in your own name, etc.). This is why, when I am asked whether someone needs to apply for probate, I have to ask a few questions of my own before I can answer.

When estate planning is done properly for a married or common-law couple, their financial affairs are usually set up so that probate is not needed when the first spouse dies. They achieve this by having their home in joint names, their accounts in joint names, and they name each other as the beneficiary of their own RRSPs or RRIFs. Because of the way the assets are held, there is no need for probate.

Even between a husband and wife, probate will be needed if the spouse who has died owned a business, real estate or a significant amount of money in his or her own name.

When the surviving spouse then dies, the picture is more complicated. The assets that once belonged to the couple, such as their home and its contents, will now be distributed to someone outside that couple. Usually at this point, probate is required in order to transfer the assets.

Probate is a court process which declares a deceased person's Will to be their valid Last Will, confirms the appointment of the executor, and directs everyone involved in the estate to deal with the estate in accordance with the Will. Sometimes this involves having the courts interpret an unclear clause or clarifying what was meant by the deceased person, when that is unclear just from reading the Will. If you are the executor of a Will for someone who has died, you get a Grant of Probate document by applying to the court and paying a court fee. The Grant of Probate is a court order, and therefore it has to be followed.

Always remember that if you are asking for a legal opinion, go to an expert in the area of law that concerns you. If you have probate questions, look for a lawyer who practices exclusively in Wills and Estates. If you need helping finding someone in Alberta, post a reply here and I'd be happy to help guide you to someone reliable and knowledgeable.