Navigating the Ontario probate process can be a daunting task, especially when it comes to identifying which assets require probate and how to minimize costs.
In this blog post, we will explore which assets require probate in Ontario and provide tips on how to minimize probate costs. Understanding the process and requirements are key for executors and beneficiaries to efficiently and accurately settle an estate.
Probate is a legal process involves determining the assets of the deceased, repaying debts and paying tax owing by the estate, and distributing the balance to the estate beneficiaries. The probate process is overseen by the court. It can be time-consuming and involve professional fees as well as estate administration taxes.
Not all assets require probate. In fact, many assets can be transferred directly to beneficiaries without going through the probate process. These assets are known as non-probate assets and include things like:
- Property held in joint tenancy
- Life insurance policies with designated beneficiaries
- Registered accounts like RRSPs, RRIFs, and TFSAs with designated beneficiaries
These assets can be transferred directly to the designated beneficiaries, bypassing the probate process altogether.
What assets require probate in Ontario?
In Ontario, any assets that are solely owned by the deceased person and are not considered non-probate assets will generally need to go through probate. This includes things like:
- Bank accounts owned solely by the deceased person
- Investments owned solely by the deceased person
- Real estate owned solely by the deceased person
Real estate that has been owned for a long time may avoid probate. This is because Ontario started converting land titles from the old Land Registry System to the new Land Title System in the 1980s. Real estate that has not been sold or transferred since then may remain on the Land Registry System and be subject to a First Dealings Exemption, bypassing probate.
Strategies to avoid probate
There are several strategies for avoiding probate altogether:
1. Joint tenancy with right of survivorship
One way to avoid probate is to set up joint tenancy with right of survivorship on property and bank accounts. This means that when one owner dies, their share automatically passes to the surviving owner. There can be risks of holding property jointly with children, so these risks should be weighed along with the potential benefit of avoiding probate.
2. Naming beneficiaries
Naming beneficiaries on life insurance policies and registered accounts can help to avoid probate. When you die, the assets are transferred directly to the named beneficiaries, bypassing the probate process.
3. Multiple wills
Some assets, including private company shares, can avoid probate if the deceased had a secondary will. Multiple will planning can be advantageous for someone with significant corporate assets in Ontario.
4. Inter vivos trusts
Another way to avoid probate is to set up an inter vivos trust. An inter vivos trust like a joint partner or alter ego trust may allow you to transfer assets directly to your beneficiaries according to the terms of the trust, without going through probate. Drawbacks include legal fees and annual tax filings that may exceed the probate savings.
The probate process in Ontario
The probate process in Ontario can be divided into four main steps:
Step 1: Applying for a Certificate of Appointment of Estate Trustee
A Certificate of Appointment of Estate Trustee confirms that the person named as executor in a will is authorized to act as the executor of the estate. The executor must file an application with the provincial court and provide certain documents, such as the original will and a death certificate.
Step 2: Identifying the assets and liabilities of the estate
Once the Certificate of Appointment of Estate Trustee has been issued, the executor must identify the estate assets and liabilities. This includes things like bank accounts, investments, real estate, and personal property. The executor must also determine if there are any debts or taxes owing by the estate.
Step 3: Paying off debts and taxes
Before assets are distributed to beneficiaries, the executor must pay off any outstanding debts or taxes owed by the estate. This includes things like funeral expenses, legal fees, and any taxes owed to the government.
From a tax perspective, death involves a deemed disposition, as if the deceased sold their assets on their date of death, triggering income tax implications. This may include the realization of deferred capital gains as well as the deregistration of tax deferred registered accounts.
Step 4: Distributing assets to beneficiaries
After paying any debts or taxes, the executor can distribute the remaining estate assets to the beneficiaries.
How to minimize probate costs
Probate can be an expensive process, with professional fees and court costs adding up quickly. However, there are several ways to minimize probate costs:
1. Plan ahead
One of the best ways to minimize probate costs is to plan ahead. This includes things like setting up joint tenancy on property and bank accounts, especially between spouses, ensuring that registered accounts have designated beneficiaries, considering multiple wills when appropriate, especially for corporate assets, and considering a joint partner or alter ego trust.
2. Keep good records
Keeping good records can help to streamline the probate process and minimize legal fees. This includes keeping track of all assets and liabilities, as well as information like adjusted cost bases for non-registered investments or taxable real estate.
3. Choose experienced professionals
Choosing professionals who specialize in the legal and tax implications of death can help to minimize costs and ensure a smooth probate process. Look for professionals who have experience in Ontario probate and tax law and who are familiar with the local court system.
Other considerations with probate
There are several other considerations to keep in mind when it comes to probate:
1. Time frame
The whole process may take anywhere from a few months to a year or more to complete. It ultimately depends on the complexity of the estate and any disputes that may arise.
The estate may be subject to various taxes, including income tax and estate administration tax. It is important to work with professionals to ensure that all taxes are paid and that the estate is in compliance with all tax laws before distributing the entire estate to the beneficiaries.
Disputes can arise during the probate process, especially if there are multiple beneficiaries or if the will is contested. It is important to resolve any disputes and ensure a fair distribution of assets.
Navigating the Ontario probate process can be challenging, but understanding which assets require probate and how to minimize costs can help to ensure a smooth and cost-effective distribution of assets.
Whether you are an executor or a beneficiary, it is important to work with experienced professionals and keep good records to minimize costs and ensure that everything is done properly. With careful planning and professional assistance, you can navigate the probate process with ease and ensure that your loved ones are taken care of according to your wishes.
Please email (firstname.lastname@example.org) or call us (416-691-8471) if you would like guidance with your estate planning, if you are an executor who needs help with probate and estate settlement, or if you have to file a final tax return for someone who has passed away.