Canadian probate laws differ somewhat from province to province. However, the basic structure of the Canadian probate process remains the same, however. The executor of an estate is responsible for gathering and inventorying the decedent’s property, paying the deceased’s debts, and the expenses of that person’s estate, and distributing what remains among his beneficiaries.
Canadian Legal Wills
Wills are one of the most essential estate planning documents. That applies to Canada and the rest of the world as well.
In Canada, all wills must be in written form for the law to consider them valid. They must also exist in a physical form – not just digitally. And several provinces, including Alberta, accept handwritten or holographic wills. However, British Columbia (BC) and Prince Edward Island (PEI) do not recognize these kinds of wills, so that is something you should bear in mind.
Generally, holographic wills 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. But those under that age can make a valid will if they are married, a sailor at sea, or Canadian Armed Forces member.
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 and notice of where the deceased 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.
Probate Laws Affecting Family Members
After the executor has submitted a will for probate, Canada allows the decedent’s immediate family members with a legal interest in the will 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.
Where probate in Canada is concerned, the courts will determine if the document in question is the final will and resolve any issues if multiple wills exist. If the testator is incapacitated when writing a will, the previous may be considered valid. And if the executor is no longer in a position to administer the will, the alternative will be chosen.
Rules for Probate Assets
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.
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
Generally, the probate fees amounts vary from jurisdiction to jurisdiction. In some provinces, people will pay very little. But in others, the estate will incur massive probate expenses. It is also worth noting that some regions apply a flat fee structure while others consider a percentage of the estate value during calculations.
Typically, 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. That fee can be anywhere from 0 percent to 1.7 percent of the value of the estate.
If you are 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 someone dies.
- Willful.co: What Are The Requirements For A Will To Be Legally Valid?
- Willful.co: Everything You Need To Know About Holographic Wills In Canada
- Legalline.ca: What is a Will and who should have one?
- Bac-lac.gc.ca: Deaths, Cemeteries and Wills
- Legalwills.ca: Probate in Canada – What it is, what it costs, how to reduce fees.
- Sun Life: 15 Answers to Your Will and Probate Questions
- Advisor.ca: Pay probate or income tax?
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.