Important Information about Probate
Important Information about Probate
Karen G. Shin November 1, 2012
This article provides information only, not legal advice. If you have a legal problem or need legal advice, contact us at or call us at 604-294-0101.
Upon death of a family member, one of the most important consideration for the surviving family members is how to deal with the estate of the deceased.
If you are named as an executor of an estate, it can be especially daunting as to what needs to be done first.
While some people believe that a will must always be probated, this is not true. Much is dependent upon the type of assets and the type of ownership of those assets by the deceased.
Generally speaking, any interest held by the deceased in real property will require the Will to be probated, unless that interest is held in joint tenancy. If the deceased has left RRSP and
failed to designate a specific beneficiary under that RRSP, you will likely need to go through probate. If the deceased had any publically-traded stocks, chances are, you will need to go through probate.
In the end, the question is, whether the third parties (banks, other financial institutions, and brokerage houses) will agree to transfer the deceased’s assets into the name of the beneficiary under the Will with something less than a court-certified copy of grant of probate. As those third-parties do not like getting themselves into trouble by (a) authorizing transfers to the “wrong” beneficiaries or (b) authorizing transfers to the beneficiaries where there are unpaid creditors of the deceased (among others), some will be more difficult than others.
Once you have established that the Will must be probated, the ramifications are two-fold:
(1) Legal fees; and
(2) Probate fees.
Legal fee is self-explanatory. While some brave this process of applying for grand of Probate on their own, it can be a long, confusing, and frustrating journey, especially if you don’t know what you’re doing. Even in law, it is a rather technical area, fraught with opportunities to make mistakes and errors. Added to that are the difficulties in dealing with the court registry because each registry has slightly different “administrative policies” or “practices” when it comes to probate applications. Those differences are nothing major, but are enough to drive you a little nuts (I must add that the court registry staff are very helpful to the public, but they are always busy and often short-staffed).
If the estate can afford it, the executors should seek professional legal advice, and let the lawyer handle the legalities involved in the application for probate. You will be busy enough with other duties as the executor, and you will not receive more remuneration for handling it yourself.
Probate fees are calculated on the gross value of the estate in the following manner: $6 for each $1,000 or part of $1,000 of the value of the estate in excess of $25,000, up to $50,000, plus $14 for each $1,000 or part of $1,000 of the value of the estate in excess of $50,000. To put things into perspective, an estate with a gross value of $500,000 will pay probate fee of $6,450 ($150 for the first $50,000, $6,300 for the remaining $450,000; if the value of the estate is less than $25,000, the probate fee will be $0).
The term “gross value” when calculating probate fee can be a slightly confusing concept. Suffice to say that this is something your lawyer can help you figure out.
Probate fee must be paid prior to the grant of probate. This is generally something the banks are comfortable with paying out prior to the actual grant, and lawyers are generally able to work with them to ensure that the payment is authorized by the bank.
Once you’ve obtained the Grant of Probate, you can now begin paying out the deceased’s income tax liabilities, and other debts (while most small debts should be paid out as soon as practicable, before the Grant, if possible, major liabilities such as mortgages will have to be paid upon sale or refinance). What’s left of the estate after all liabilities have been paid off can then be distributed among the beneficiaries under the Will.
Be mindful of the following, among others:
• Once you begin “dealing” with the estate in any manner, you’re bound to finish what you started.
• As an executor, you are personally liable for the distributions you make. If you do not follow the directions under the Will, or fail to pay out any debts or liabilities, you are putting your own assets at risk.
• Use professional advisors wherever possible.