What is Probate and How Does it Work?

You’re probably like most people; you want your loved ones to receive their inheritance quickly and with minimal tax implications should you pass away. Problem is, few Canadians are set up to make that happen. In fact, according to a recent survey by RBC Insurance, only 15 per cent of Canadians have a plan for how their assets will be transferred after they’re gone.

It’s understandable; estate planning can feel intimidating. One key element of estate planning is understanding what probate is and how it works. Otherwise, your family could face delays, surprise expenses, and additional stress at an already tough time.

In other words, you might not achieve what matters most – protecting the people you care about. The good news? Probate doesn’t have to be overly complicated. This guide breaks down what probate is, when it’s legally required (Good news: not always), and what you can expect in terms of costs and timelines. Whether you’re ready to begin planning your estate or settling someone else’s, you’ll get the clarity you need to move forward with confidence.

Key takeaways

• Probate is a court process that validates a will and authorizes an executor to manage and distribute a deceased person’s estate.

• The purpose of probate is to verifies the will, give an executor the legal power to act, ensure debts are paid first, and distribute assets in accordance with the will.

• Probate is not always required in Canada. It is typically required for assets solely in the deceased’s name. Jointly owned assets and registered accounts with named beneficiaries usually bypass probate and don’t count toward estate value.

• If you die without a will, the courts appoint an administrator and distribute assets according to provincial rules.

• Probate can take six weeks to six months for simple wills. Complex estates could extend to 12–18+ months.

• Probate fees vary from province to province.

What is probate?

Probate or “probate of will” is a legal court process that officially confirms the validity of a will, and officially appoints an executor (or administrator) to manage a deceased person’s estate. Once probate is granted by a provincial court, an executor can distribute assets as outlined in the will and in accordance with the law.

It’s important to note that probate isn’t always necessary in Canada, and that it’s the responsibility of the executor to determine whether probate is required.

What is the purpose of probate?

The purpose of probate is to protect everyone involved and ensure your wishes are fulfilled after you’ve passed away. Here’s what probate does:

• Verifies the will: Probate essentially gives the will a stamp of approval by a court. Probate assures all interested parties that a will is authentic and the final version – not an outdated draft or a forgery.

• Gives the executor legal power to act: Probate prevents unauthorized people from accessing assets once a person dies. Without probate, financial institutions and insurance companies typically won’t release funds or transfer assets.

• Ensures debts get paid first: Once a person dies, debts like income taxes, credit card bills, outstanding loans, and probate taxes and related costs must be paid using funds from the estate before any inheritances are distributed. This protects not just creditors but also beneficiaries.

• Establishes the estate’s value: This is necessary for calculating probate fees and taxes.

• Distributes assets to beneficiaries: Probate ensures your assets are transferred to the people you intended them to go to. It also creates a legal paper trail that accounts for every asset and expense, ensuring the executor follows the rules, and nothing is mishandled.

When is probate required in Canada?

Probate is almost always required if someone hasn’t left a will. If a will exists, there isn’t a universal dollar amount that automatically triggers probate in Canada. If you leave a relatively small estate or assets are to be passed on to a surviving spouse, then probate may not be required. However, each province makes its own rules, and financial institutions set their own policies too.

Generally, probate comes down to the type and ownership of assets. If the deceased person held accounts, investments, or property solely in their name, probate is typically required.

Conversely, assets owned jointly with a spouse typically don’t require probate. For example, if you and your spouse own your home as joint tenants with right of survivorship, the property should go directly to your spouse when you pass away.

Similarly, if beneficiaries are named in a life insurance policy, or for registered accounts like a Registered Retirement Savings Plan (RRSP), Registered Retirement Income Funds (RRIFs), or Tax-free Savings Accounts (TFSAs), probate isn’t required. These assets don’t count toward the estate’s total value – which helps lower probate fees.

What happens if someone dies without a will?

When someone in Canada dies without a valid will, it’s called dying “intestate.” This means they’ve left no instructions about who inherits their assets or who manages their estate. In this case, the courts step in.

Without a will, the courts will appoint an estate trustee (also called an administrator). This is usually the closest next-of-kin.

From there, assets get distributed in a strict legal order set by each province or territory. Typically, assets go to a spouse, then children, parents and siblings. Depending on where you live, common-law partners may not inherit anything – as is the case in Ontario and Quebec. Stepchildren also generally have no legal right to inherit. That close friend or charity you cared about? They’ll receive nothing.

The process of dying without a will may spark family conflict over who gets what or who is in charge, creating rifts that could last for years. Bottom line: dying without a legal will may not produce the results you would have wanted.

What steps are involved in the probate process?

The probate process varies from province to province, but it generally follows the same step-by-step process, regardless of where you live in Canada. Here’s what happens after you pass with a valid will:

• 1. Prepare court documents and file the will

The executor’s first job is to submit a valid will and proof of death to the court, along with whatever documentation the court requires to prove the will is the most recent Last Will and Testament. The executor must also apply for probate by filling in the appropriate court documents for that province or territory.  Once the courts approve the will, the executor has the legal go-ahead to begin dealing with estate.

• 2. Notify interested parties

The executor is now legally required to inform everyone who has a stake in the estate that probate is underway – beneficiaries, potential heirs, and known creditors. Some provinces, like Nova Scotia even require a public notice to be published in a local newspaper or online to alert creditors who might not be on anyone’s radar.

• 3. Take inventory of the estate

A detailed inventory of the estate’s assets is required to determine what’s owed in taxes, including probate fees or taxes. That means the executor must track down and value everything the deceased owned – real estate, bank accounts, investments, pensions, vehicles, jewelry, art, collectibles, even valuable household items.

This is often the most time-consuming step – and shouldn’t be rushed. Certain assets may require professional appraisers, such as a cottage or valuable jewellery. While this adds time and expense, it helps avoid fights over whether something was valued fairly.

• 4. Pay taxes and debts

The executor must first settle what the estate owes using funds from the estate itself,  before any beneficiaries receive  their inheritances. Debts include mortgages, income tax, and outstanding bills like credit card balances and medical debts. The executor is also responsible for filing a final tax return and pay any taxes owing on the estate itself, including probate fees and taxes and other probate-related costs like legal and accounting fees.

Family members may be surprised at this point – these costs can add up. On the plus side, money received from an inheritance is not considered taxable income by the Canada Revenue Agency (CRA).

• 5. Resolve disputes (if they arise)

Not every estate goes smoothly, and disputes may occur. A family member could challenge the validity of a will, claiming it was signed under duress, for example. Other times, beneficiaries may disagree over how assets should be divided. In the event of a dispute, mediation will likely be the first step.  If that doesn’t work, it could go to the court to decide, a process that stretches probate by months or possibly years.

• 6. Distribute assets

Once the debts are paid, taxes are settled, and any disputes are resolved, the executor can finally distribute the remaining assets to the beneficiaries according to the will. After all obligations have been met, the executor can now close the estate by submitting a detailed report listing what expenses came in, what went out, and what was distributed to whom. Finally, any necessary documents are filed with the probate court to officially close the estate.

How long does probate take in Canada?

The short answer? It depends. In straightforward cases where the will is relatively simple, probate in Canada can take as little as six weeks to six months. But complex estates with multiple properties, business interests, or foreign assets, it can take much longer – from 12 to 18 months.

Where you live in Canda matters too. Some provincial courts process probate applications faster than others, and backlogs can cause frustrating delays. An executor’s efficiency also plays a role.

When choosing an executor, consider someone who’s organized, can handle tax, legal, and administrative tasks, and has the time to dedicate to the process. The bottom line: probate isn’t a quick process. Executors and beneficiaries should be prepared for probate to take time, patience, and often more paperwork than anyone expects.

What are the costs of probate?

Probate comes with real costs that can quickly add up. It matters since the executor uses funds from the estate – cash or the proceeds from selling assets – to pay expenses before beneficiaries receive anything. So, every dollar spent on probate is a dollar that doesn’t go to your loved ones.

The biggest expense is usually government probate fees or taxes – often called estate administration taxes. Most provinces charge a fee based on the estate’s value, but rates and how they’re calculated vary widely.

In Ontario, for example, you do not pay Estate Administration Tax if the value of the estate is $50,000 or less.

Alberta caps probate fees at $525 for estates valued at $250,000 or more, and no matter how large the estate, while Quebec has no probate fee.

There are also associated expenses your estate will likely incur along the way, like professional fees for lawyer, accountants, and appraisers. You should also consider compensating an executor for their work. While there is no standard amount for how much executors are paid,  a guideline is two to five per cent of the estate’s value, while in Quebec executors usually bill an hourly rate. Family members chosen as executors often waive this fee, but it’s a demanding job that should be acknowledged in some way.

How to reduce probate costs

Here’s the thing – not all probate costs are inevitable with proper estate planning. Consider strategies that bypass probate altogether, like naming beneficiaries on registered accounts and life insurance policies, hold property with right of survivorship, or transfer funds into trusts and segregated funds.

Common challenges with probate

Probate is meant to bring order and clarity after a death but, in real life, it can be anything but simple.

Disputes over the will

One of the most common – and painful – challenges arises when beneficiaries or family members challenge the will’s validity. They might claim the deceased was pressured into signing it or didn’t grasp what they were doing. These disputes can escalate, delaying probate and increasing legal costs.

Disputes can often be resolved through mediation led by a neutral third party – a far less expensive and draining option than going to court. The best solution? Make sure your will is properly drafted, witnessed, and up to date. And consider discussing your wishes with family members ahead of time to prevent surprises later.

Delays in the probate process

Probate rarely moves as quickly as anyone hopes, especially if the court has a backlog of probate applications to process. Missing documents is a common reason for delays. When planning your estate, keep all important documents organized in one place and make sure your executor knows where to find them. Uncooperative beneficiaries who won’t sign off on required forms or challenge decisions could also stall the process. Complex assets like foreign property, privately held businesses, or hard-to-value collections may require extra time for appraisals and legal work.

Insufficient funds to cover debt

If an estate owes more than it’s worth, the executor must prioritize which creditors get paid first – and beneficiaries may end up receive nothing. Debts are paid off in order, beginning with the CRA if tax is owed and provincial or territory tax. Then secured debts such as a property are paid off, followed by unsecured debts like credit cards.

If there simply isn’t enough money, some debts go unpaid, although typically in Canada outstanding debts are not passed on to family members. That’s why it’s crucial to have a clear picture of your debts when estate planning and consider life insurance or other tools to ensure your estate can cover what’s owed.

Emotional stress

Grief and money are a tough combination. Even families that get along well could find themselves at odds during the probate process. Old resentments can resurface, and siblings may disagree about what’s fair. Executors often bear the brunt of this tension – dealing with family dynamics and resolving any disputes, all while doing their job.

Tips for navigating probate

You have the power to make the probate process easier, faster, and less stressful for everyone involved. Here are some practical steps:

Plan

A well-drafted, clear and current will is the foundation to navigating probate once you’re gone. Consider talking to a professional who can help structure your assets to minimize probate fees and maximize what goes to your beneficiaries. Review your assets to make sure there’s enough cash or liquid investments to cover debts, taxes, expenses, and even funeral costs. That way, your executor won’t feel forced to quickly sell property, or have beneficiaries pay out-of-pocket.

Stay organized

Create a centralized file to keep important documents, and let your executor (or loved one) know where to find it. Include information on all your assets and debts – your will, property deeds, insurance policies, bank account information, investment statements, debts like credit card bills – as well as passwords and contact numbers.

If you’re the executor, create a detailed inventory of all assets and debts. Keep meticulous records of every transaction and save all receipts. Good record-keeping protects you, speeds up the process, and gives beneficiaries confidence that everything is being handled properly.

Communicate

Consider having conversations with your family about your wishes. It might feel uncomfortable, but it can prevent disputes and hurt feelings down the road when emotions are running high.

For executors, silence could breed suspicion and misunderstandings. Keep beneficiaries in the loop, even when there’s nothing new to report. Let them know what stage you’re at, what’s taking time, and when they can expect updates.

Get professional help

Probate can involve complex legal, tax, and financial matters – and mistakes could be costly. A lawyer who specializes in estates can guide an executor through the court process and help navigate any disputes. An accountant can ensure the estate meets all its obligations to the CRA.

Estate planning and the role of probate

Probate is a necessary part of estate planning that protects your legacy and ensures your assets reach the people you care about. But without proper planning, probate could become costly, time-consuming, and stressful for your loved ones. Educating yourself on estate planning or working with an accredited advisor could help save your family money and months of stress down the road. It’s worth the effort now to give them peace of mind later.

FAQs about probate

Is probate needed if there is a will?

If you die with a will, probate is not always required in Canada. It depends on a variety of factors including the size and type of assets in the estate. If assets, such as real estate, bank accounts, or other investments, are held solely in the deceased’s name then probate is typically required. Assets with named beneficiaries (life insurance plans or RRSPs) or assets held jointly with a spouse can typically bypass probate altogether. 

How long does probate take?

The time probate takes varies from province to province. Straightforward and smaller estates can take around six weeks to a few months, but complex estates with multiple properties, businesses and foreign assets can take 12 to 18 months or more, especially if someone is disputing the validity of the will.

What is the cost of probate in Canada?

Probate fees, also called estate administration tax in some provinces, are charged by the government based on the estate’s value. The costs and how they’re calculated vary dramatically by province or territory. Some provinces, such as Ontario, British Columbia and Nova Scotia, (charge a percentage based on the value of the estate. Some provinces charge a flat fee, some have a fee-based system, such as Alberta, while Manitoba and Quebec charge no probate fees at all. In addition to probate fees, there are other estate costs to consider, such legal, accounting, and administrative costs.

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