Probate laws in Canada differ somewhat from province to province. The basic structure of the probate process remains the same, however. The executor of an estate is responsible for gathering and inventorying the decedent’s property, paying his debts and the expenses of his estate, and distributing what remains among his beneficiaries.
All wills must be in written form in Canada, but some provinces, including Alberta, accept handwritten or holographic wills. These do not require witnesses, but two disinterested individuals must witness and sign all other wills. If one of your witnesses is also a beneficiary, she cannot receive her bequest. The legal age for making a will in most states and provinces is 18.
Locating the Will
Under Canadian law, you do not need a special court order to check the decedent’s safe deposit box for his will. You can take a copy of the death certificate to the bank where you believe he stored it and bank personnel will open the box. If you’re the named executor, you and the banker will inventory the box’s contents and he will give you the will. Canada also provides a Vital Statistics Agency where the decedent might have registered his will, as well as notice of where he put it for safekeeping. After you locate it, Canada’s Estate Administration Act requires you to send a copy to all the decedent’s beneficiaries and heirs. Heirs are the family members who would have inherited if he had not left a will.
Laws Affecting Family Members
After the executor has submitted a will for probate, Canada allows the decedent’s immediate family members to petition the court to have it changed. Under the Wills Variation Act, applicable in most provinces, the spouse or any child of a decedent can object to the terms of a will if it disinherits them or if they feel the decedent didn’t adequately provide for them. In most cases, marrying after you write your will invalidates it. If you divorce, your decree voids any provisions or references you made to your spouse.
Canada does not require all wills to pass through probate. Most states and provinces offer probate exemptions if the value of the decedent’s probate property does not exceed a certain amount. The amount varies from jurisdiction to jurisdiction. Probate property generally excludes assets held with another individual as joint tenants, pay-on-death accounts, and insurance and retirement accounts with named beneficiaries.
Taxes and Other Fees
Canadian provinces impose probate fees based on the value of the decedent’s probate assets before the executor pays any debts or expenses of the estate. This fee can be anywhere from .5 to 1.5 percent. If you’re the executor of a complicated estate and you’re not comfortable handling its administration on your own, you can hire an attorney at the expense of the estate. Canada does not have an estate tax, but the decedent’s estate is responsible for paying tax on any income generated after his death.
- LeanLegal.com: Probate FAQ
- The Canadian Bar Association: Your Duties as Executor
- The Hughes Trust Company: FAQ – Canadian Legal Wills
- Legal Aid Alberta: Wills and Estates
- Community Legal Clinic: Making a Will (PDF)
- Rule of Law: Wills Variation Act – An Introduction
- Serbinski Accounting Firms: U.S. vs. Canadian Estate Taxation
- Federal Trade Commission Consumer Information. “Debts and Deceased Relatives.” Accessed March 4, 2020.
- The Judiciary State of Hawai‘i. “Hawai'i Probate Rules.” Accessed March 4, 2020.
- Virginia Law. “Code of Virginia, § 64.2-452. How Will May Be Made Self-Proved; Affidavits of Witnesses.” Accessed March 4, 2020.
- Utah Courts. “Civil Terminology for Utah Interpreters,” Pages 20-21. Accessed March 4, 2020.
- Iowa Trust Code. “Chapter 633A,” Page 20. Accessed March 4, 2020.
- Utah Code. “Employment of Appraisers,” Page 24. Accessed March 4, 2020.
- The Superior Court of California, County of Santa Clara. “Closing and Distributing the Probate State." Accessed March 4, 2020
- Michigan Legislature. “700.3801 Notice of Creditors.” Accessed March 4, 2020
- Alaska Court System. “How Long Does a Creditor Have to Make a Claim Against the Estate?” Accessed March 4, 2020.
- Internal Revenue Service. “Filing Estate and Gift Tax Returns.” Accessed March 4, 2020.
- The Superior Court of California, County of Santa Clara. “Closing and Distributing the Probate State." Accessed March 4, 2020.
- New York State Unified Court System. “When There Is No Will.” Accessed March 4, 2020.
Beverly Bird has been writing professionally for over 30 years. She is also a paralegal, specializing in areas of personal finance, bankruptcy and estate law. She writes as the tax expert for The Balance.