What is probate?
When a person dies, they usually leave behind property, money, and other belongings. If they have left a will, the person(s) named as the estate executor(s) or trustee(s) have the authority to deal with the deceased’s assets in accordance with the terms of the will.
The executor(s) or trustee(s) will need to determine whether probate is required. For simplicity in this article, we will refer to such persons as the executor. Note: This article does not cover the probate process when a person dies without a will.
How long does probate take?
The probate process can take some time, but the total length is dependent on several variables such as how large the estate is and whether you have involved a lawyer for assistance. The total amount of time to get a will probated can take approximately between 10 – 18 weeks, or even up to 6 months. This accounts for the time spent by the executor gathering information about the estate assets, preparing documentation (or having documentation prepared by legal counsel), and awaiting court review.
Gathering information about estate assets
The named executor will need to collect and consolidate information regarding the deceased’s assets. Collecting information may require reaching out to financial institutions where the deceased had accounts. Delays may occur depending on how long it takes for the various financial institutions to respond.
Preparing documentation
Once all information is collected, documentation for submission to the court can be completed. For more complex cases, you may desire to engage legal counsel to assist with this step.
Court review
If ordered, a probated will has been determined by a court to be the last valid will of the deceased, which means that the court has also validated the authority of the individual named in the will as the executor of the estate
When is probate required?
Probate is often required when the deceased person held assets, such as bank accounts, investments, or real estate, in their sole name alone, as these assets must be dealt with by the executor as part of administering the estate. It’s required because financial institutions, insurance companies, or purchasers of real estate often want the assurance of a court that the estate executor has the authority to deal with the estate assets before giving them access.
What is a probate lawyer and do I need one?
A probate lawyer is a legal expert who specializes in helping executors navigate the probate process. They are knowledgeable about the laws and regulations related to wills, estates, and probate court.
Probate lawyers can help you with:
- Understanding your rights
- Handling complicated paperwork
- Representing your interests in court if necessary (estate disruptions or disputes)
Whether you feel you need a probate lawyer depends on the complexity of the situation and what you are comfortable with.
What assets don’t require probate?
Some assets don’t need to go through the usual probate process. Some examples of these assets can include:
- Jointly owned accounts: If the deceased person had a joint bank account, property, or other assets jointly owned with someone else, these assets usually pass directly to the surviving joint owner.
- Assets with designated beneficiaries: Certain assets, like life insurance policies, retirement accounts, and investment accounts (e.g., TFSA), allow the account holder to designate beneficiaries.
What are probate fees?
Probate taxes or fees, also known as estate or inheritance taxes, are taxes or fees that are paid to the government when someone passes away, and their will goes through the probate process. These fees are calculated based on the value of the deceased person’s estate, including property, money, and possessions. The exact fees and expenses vary from 1 province to another in Canada with some being a percentage of the value of estate and others being a flat rate fee.
In conclusion, probate is a legal process that happens after someone passes away.