Real Estate Lawyers – LD Law

Do All Wills in Canada Have to Be Probated?

It’s a common misconception that only wealthy people need estate planning. Everyone should have an estate plan in place, no matter how much or how little they have. After all, you never know when something might happen to you – and if something does happen, you’ll want to ensure your loved ones are taken care of.

One of the most important aspects of estate planning is wills. A will is a legal document that outlines your wishes for what should happen to your possessions and real property after you die. It can also include instructions on who should care for any minor children you may have.

What is Probate?

Probate is the legal process of proving that a will is valid. It’s also when the executor named in the will is given the legal authority to carry out the wishes outlined in the document.

The probate process can be complicated, and it can take months – or even years – to complete. It’s also expensive, as there are court fees and other costs associated with probating a will.

As a result, many people choose to have their wills notarized instead of going through the probate process. Notarizing a will simply means that it’s been signed in front of a witness – usually a notary public – and that the signature has been witnessed.

Notarizing a will doesn’t make it more legally binding than a will that hasn’t been notarized. However, it makes it easier to prove that the will is valid if there’s any question. Want to know more about what are the requirements for a will to be valid in Canada? Read this article.

Must My Will Go Through Probate?

Often. In most cases, probate is needed for estates in Ontario. The requirement to probate procedure is occasionally avoided or waived in a few exceptional situations owing to pre-death planning.

A few factors determine whether or not a will must go through probate. The value of the probate estate and whether or not there are any debts are two key factors.

  • If the estate’s value is $150,000 or less, it can be distributed according to the will without going through probate. This is known as a small estate.
  • If there are debts owed, the estate may have to go through probate so that the debts can be paid off before the assets are distributed.
  • Another factor impacting whether or not a will has to go through probate is how the assets are titled. For example, if you have a bank account that is jointly held with someone else, the account will pass to the other person without going through probate.

The same applies to assets with named beneficiaries, such as a life insurance policy. These assets will pass to the named beneficiary without going through probate. Want to know more about who gets first priority in probate in Canada? Read this article.

What Exactly Happens When a Will is Probated?

When a will goes through probate, the executor is given the legal authority to carry out the wishes outlined in the document. This includes paying off any debts the estate may owe and distributing the assets according to the will.

The probate process can be complicated, and it’s important to understand what to expect if your will needs to be probated. Depending on your needs, you may wish to seek legal assistance.

Does Every Will in Canada Have to Go Through Probate?

In reality, almost all Canadian wills are probated. Jointly held assets that are passing to the joint asset holder are the only exclusions. The exception is when all of the property is jointly owned, and the assets pass to the joint property holder through survivorship. While it’s not required by law, most people choose to have their wills probated. 

How Can I Avoid Probate? Or At Least Reduce My Probate Fees?

There are a few different ways to avoid probate or at least reduce the fees associated with it. One way is to create a living trust. This is a trust that you make while you’re still alive, and it will allow your assets to be passed on to your beneficiaries without having to go through the probate process. You can also add provisions to your will to allow your assets to be transferred without probate. 

For example, you can designate a specific beneficiary for each asset, such as your home, car, and bank accounts. This designation will bypass the need for probate. Finally, you can create a joint ownership arrangement with someone else for your assets. This means that when you die, the asset will automatically transfer to the other owner without the need for probate.

While there are ways to avoid probate, it’s not always possible. For example, probate may be unavoidable if you have a large estate or own property in more than one province. In these cases, it’s important to understand the probate process and how it can impact your beneficiaries.

Are Probate Fees Charged on Both a Husband and Wife’s Estates?

At LD Law, our Wills include a very important “survivorship” clause. This clause states that no beneficiary will receive the property bequeathed to them until they have survived you by 30 days.

Imagine a situation where you were travelling with your primary beneficiary (spouse or child) and had an accident in which you died, and then your primary beneficiary was hospitalized but died the next day.

If there were no lifetime inheritance clause, all of your assets would have gone to your primary beneficiary, which would have incurred probate costs, and then the assets would have been distributed according to his will, which would have incurred probate again.

Fortunately, our Wills take this situation into account, but unfortunately, some do not.

How Long Does the Probate Process Take?

The probate process can take anywhere from 6 to 8 weeks, depending on the complexity of the estate and how many parties are involved. It’s important to note that the executor of the will is not allowed to distribute any estate assets until the probate process is complete. This can create financial hardship for the beneficiaries, so it’s important to plan accordingly.

If you’re considering probating your will, it’s a good idea to speak with experienced real estate lawyers to learn more about the process and what to expect. They can help you determine if probate is right for your situation and provide guidance on how to navigate the process.