Planning your estate or going through the process of dealing with the last will and testament of a loved one is no easy process. Unfortunately, technical or legal complications, misunderstandings and disagreements can and often do occur, making this already difficult process even more taxing and emotionally stressful.
One way to avoid stress, disagreements while protecting the wishes of your loved one is to go through a process called probate. However, there are a few drawbacks to the probate process you should be aware of. Here are some key details you should know about probate in Ontario:
What is probate?
Essentially, probate is the process in which an individual’s last will and testament, as well as their appointment of will executor, is validated and legally recognized by the courts. It also confirms the person of choice to be the executor of that will.
Do I need to go through the probate process?
Generally speaking, it’s likely that you will need to go through the probate process if you are the executor of a loved one’s will. However, it may not be necessary to go through probate for all your assets.
Any asset that involves a significant amount of money deposited in a financial institution, real estate or shares in a publicly-traded company will probably require probate, although there are many exceptions that a good lawyer can use to avoid paying probate taxes. It’s also a good idea to go through the probate process if you feel that there may be disputes between the will beneficiaries and its executors.
Keep in mind, however, that probate is not required for all assets depending on how these assets are set up and structured. RRSPs with a designated beneficiary, for example, do not need to go through probate. Instead, the RRSP will simply be transferred to the named beneficiary.
What are the advantages and disadvantages of probate?
As mentioned previously, probate helps to limit or minimize any disagreements that may arise and also legitimizes an individual’s claim as the executor of the will to family members and third-party institutions such as banks and land transfer offices. Probate also helps to impose a timeline on claims made against the estate.
However, it’s not all good news when it comes to probate. It’s likely not a surprise that fees and taxes are involved in the process, and that Ontario actually has the highest fees in the country. Another potential drawback is the fact that once probate is complete, the legal records of the process are made public and may be accessed by anyone who requests them, which may cause issues for some regarding their personal privacy.
Probate the right way
If you find that probate is necessary, there are ways to plan your estate and set up your last will and testament to minimize the disadvantages, namely the high taxes and fees. Typically, this would include designating beneficiaries on investments like your RRSP, having joint ownership for your assets or even giving some of your assets away to charity. You should consult a lawyer with experience in probate, and a financial advisor to explain the ramifications of any steps you take to structure your estate. This is a very complicated area of the law that requires expert advice.
Can I file for probate myself?
Technically, yes. However, the real question is would you really want to? Filing the necessary probate paperwork is a lengthy and complex process. Moreover, any omissions or mistakes could delay the entire process by quite some time, and cost you thousands of dollars in fees and taxes. It’s often the case that working with a lawyer who specializes in helping families with wills and estate planning will not only save you time and confusion, they may also save you money as well.
Still a little confused about probate or wills in general? The team at Ares Law specializes in wills and estate law and planning in the Muskoka region. We’re always happy to answer any questions you may have. Whether you’re thinking about obtaining a Last Will and Testament, or you’re just starting the process of probating the Will of a loved one, please call Ares Law. In fact, Bernie will walk you through each step of the process, one at a time, just give him a call at 705-645-8743; we’re here for you.
