PROBATE, AFFIDAVIT, AND STORAGE
1. What is Probate?
Probate is the legal process of validating a will and appointing an executor to administer the estate of a deceased person. It is a provincial responsibility, so the specific steps involved in the probate process may vary depending on where the deceased person lived. However, there are some general steps that are common to all provinces and territories.
2. Does every estate need to go through Probate?
A probate process is necessary in Canada when a person dies leaving behind assets that are not held in joint ownership with right of survivorship or that do not have a designated beneficiary. This includes assets such as real estate, bank accounts, investments, and personal belongings.
Here are some specific examples of situations where probate is required:
- The deceased owned real estate in their sole name.
- The deceased had bank accounts or investments that were not held jointly with right of survivorship.
- The deceased had personal belongings of significant value, such as a jewelry collection or a rare coin collection.
- The deceased died without a will.
- The deceased’s will is being challenged.
Even if the deceased’s estate is relatively small, probate may still be required if there are any debts or taxes that need to be paid. The executor of the estate is responsible for paying off all of the deceased’s debts and taxes before distributing the remaining assets to the beneficiaries.
Probate can be a complex and time-consuming process, so it is important to seek legal advice if you are the executor of an estate. A lawyer can help you to navigate the probate process and ensure that the estate is administered properly.
2. How does the probate process work?
- The executor applies for probate. The executor can be named in the will or appointed by the court if there is no will. The executor must file an application with the probate court in the province or territory where the deceased person lived.
- The court verifies the will. The court will review the will to make sure it is valid and that the testator (the person who made the will) was of sound mind when they signed it.
- The court appoints the executor. If the will is valid, the court will appoint the executor. The executor will then be granted a grant of probate, which is a legal document that gives them the authority to administer the estate.
- The executor gathers and inventories the assets of the estate. The executor will need to identify and gather all of the assets of the estate, including bank accounts, real estate, and personal belongings. The executor will also need to create an inventory of all the assets, including their value.
- The executor pays the debts and taxes of the estate. The executor is responsible for paying all of the debts and taxes of the estate. This may include funeral expenses, income taxes, and estate taxes.
- The executor distributes the assets of the estate to the beneficiaries. Once the debts and taxes have been paid, the executor will distribute the remaining assets of the estate to the beneficiaries named in the will.
Timeframe for probate
The time it takes to complete the probate process can vary depending on the size and complexity of the estate. However, it typically takes several months to complete the process. In some cases, it can take a year or more, especially if there are any challenges to the will.
3. Does Probate involve costs?
The cost of probate varies depending on the size and complexity of the estate. However, there are some general costs that are common to all estates, such as court fees, executor fees, and legal fees.
As of 2023, there is no probate fee in Ontario for estates valued up to $50,000. For estates valued above $50,000, the probate fee is $15 per $1,000 of the estate’s gross value, or 1.5% of the estate’s gross value over $50,000. The probate fee is charged to the estate, and the executor of the will is responsible for ensuring that it is paid.
4. Can I avoid Probate?
There are a few ways to avoid probate in Canada, some easier than others. One common method is to hold assets jointly with right of survivorship, which means that when one owner dies, their share automatically transfers to the surviving owners. This is a popular way to own real estate and bank accounts with a spouse or partner.
Another option is to designate beneficiaries for certain types of assets, such as RRSPs, RRIFs, and TFSAs. When you die, the assets will be paid directly to the beneficiaries, bypassing probate.
If you have more complex assets or want more control over how your estate is distributed, you can create a living trust. A living trust is a legal arrangement that transfers ownership of your assets to a trust during your lifetime. You can then appoint a trustee to manage the trust and distribute the assets to your beneficiaries according to your instructions.
Other ways to avoid probate include gifting assets to your loved ones during your lifetime or purchasing life insurance and designating them as the beneficiaries.
5. What is an Affidavit of Execution?
An affidavit of execution is a sworn statement that is signed by a witness to a will or other legal document. It is used to verify that the testator (the person who signed the document) was of sound mind and memory when they signed it, and that they did so voluntarily. Affidavits of execution are commonly used in probate proceedings, but they can also be used for other purposes, such as to verify the authenticity of a contract or other legal document.
There are several benefits to using an affidavit of execution in Canada, including:
- It can help to prevent fraud and forgery.
- It can help to ensure that the wishes of the testator are respected.
- It can help to make the probate process smoother and more efficient.
- It can provide peace of mind to the executor of the estate and the beneficiaries.
6. What happens if I do not have an affidavit of execution?
The Affidavit verifies that you, the testator, and your witnesses adhered to all the appropriate procedures when signing your Will. An affidavit of execution is not mandatory, but if going through probate, the process could become more complicated. For example, your executor will need to contact your witness or convince the courts that the executor is missing / passed.
7. Where should I store my will?
Your last will and testament is one of the most important documents you will ever create. It is a legal document that outlines your wishes for how your assets should be distributed after your death. It is important to store your will in a safe place where it can be easily found by your executor and beneficiaries.
Here are some tips on how to store your last will and testament safely in Canada:
- Choose a safe location. Your will should be stored in a safe place where it is protected from fire, water, and theft. Some good options include a fireproof safe or safety deposit box.
- Tell your executor and beneficiaries where your will is. It is important to let your executor and beneficiaries know where your will is stored so that they can easily find it after your death. You should also give them copies of your will if possible.
- Keep your will up to date. As your life changes, so should your will. It is important to review your will regularly and make updates as needed. If you make any changes to your will, be sure to store the updated version in a safe place.
Here are some additional tips for storing your will safely:
- Make sure that the safe or safety deposit box is in your name. If you store your will in a safety deposit box that is in the name of another person, they may have access to your will before you die.
- Consider using a professional will storage service. There are companies that specialize in storing wills safely and securely. These companies can provide you with peace of mind knowing that your will is in safe hands.
- Digitize your will. You can scan your will and save it as a digital file. This can be a good backup option in case your physical will is lost or destroyed.
Here are some things to avoid when storing your will:
- Do not store your will in your home office or bedroom. These areas are more likely to be damaged by fire or theft.
- Do not store your will with your other important documents, such as your passport or birth certificate. If you lose or have these documents stolen, it will be more difficult to replace them.
- Do not tell anyone where you have stored your will unless they need to know. This will help to protect your privacy and prevent your will from being lost or stolen.
8. Can I store my will digitally?
Except British Columbia, all other provinces require a physical copy of the will signed by the testator and witnesses to be valid.
However, you can still store a digital copy of your physical will for your own convenience. You can do this by scanning your will and saving it as a PDF file. You can then store the PDF file on your computer, in a cloud storage service such as Google Drive or Dropbox, or on an external hard drive.
It is important to note that a digital copy of your will is not a legally valid will. If you need to make changes to your will, you will need to update your physical will and have it signed by you and two witnesses.