Benjamin Franklin famously pronounced: "In this world nothing can be said to be certain, except death and taxes."
Even after death, there is no escape from taxes. Besides paying a final income-tax bill, the estates of most Canadians will pay probate fees to obtain a court ruling that validates the will and confirms the appointment of an executor. These fees are very much like a tax. Some provinces actually call them a tax.
Probate may not always be legally required. Estates may be exempt, for instance, if the value is small. Yet financial institutions may still demand that a will be probated before the deceased's assets under their care are released.
Probate fees apply to the total value of an estate. Precisely how an estate is valued depends on the laws in the province where the will is probated. Typically, bank accounts, cash, investments, homes, vehicles, vacation properties and other real estate, business assets, collectables such as art, or even jewellery and other personal items are all included. The amount of any outstanding mortgages on real property will be deducted from the estate value.
Probate fees are not paid for assets held jointly, such as a bank account or a house jointly owned by a couple. Also exempt are assets that have a named beneficiary, such as RRSPs, registered retirement income funds (RRIFs), life-insurance policies, segregated funds and pensions.
A will is probated in the province or territory where the deceased ordinarily resided, but any real estate is subject to probate in the jurisdiction where it is located. For example, if the deceased owned and resided in a home in Ottawa and owned a ski chalet at Mont Tremblant in Quebec, her estate including the Ottawa home would be probated in Ontario and the ski chalet would be subject to Quebec probate laws.
The cost of probating your will could take a sizable chunk out of the assets you plan to leave your beneficiaries. The total bill depends on the size of your estate and the rules that apply in the jurisdiction where your will is probated, as well as the fees charged by the lawyer handling the estate.
Quebec has the lowest probate fees in the country. If a notary has prepared a will, there are no fees. Otherwise, filing an application to probate a will is just $100.
The Yukon charges a flat fee of $140 for probate and this only applies to estates valued at more than $25,000.
Alberta, Nunavut and the Northwest Territories have identical and relatively inexpensive probate fees. Estates of $10,000 or less pay $25. The price tag increases gradually to a maximum of $400, which applies to estates of $250,000 or more.
The rest of the provinces levy probate fees that are a percentage of the estate's value with no upper limit.
A rundown of the cost to probate a $500,000 estate in each province and territory illustrates how widely these fees can vary across the country.
Additional small administrative fees charged by some jurisdictions, along with legal fees, are not included in the above figures. For details on probate rates by province, visit www.taxtips.ca.
Where there are taxes, there are tax-avoidance strategies. This maxim certainly applies to probate fees. Taking steps to reduce probate is generally only worth the effort for higher-value estates settled in one of the provinces with no upper limit on probate fees.
One option is to relocate to a province with lower probate fees. Another approach is to give away assets before you die. Be forewarned that a gift could result in an immediate tax bill on any capital gains. Investing in real estate in provinces with low probate fees is another tactic. Setting up a trust to hold certain assets will keep them outside your estate and hence not subject to probate.
If an asset is jointly owned and one owner dies, the asset automatically passes to the other person and escapes probate. The costs involved to arrange joint ownership could include legal fees, land transfer taxes and taxes on capital gains.
Joint ownership works well for co-owners who are spouses, but can be problematic for non-spouses. Once you become a joint owner, you are no longer fully in control of the asset and this could have unintended consequences. For example, if you co-own your home with a child who splits from her spouse, you might be forced to sell your home so she can fund her divorce settlement.
"People read the headlines about avoiding probate fees," says estate-planning lawyer and author Lynne Butler. "Then they do ill-advised things with their assets without understanding the implications. It is essential to seek the advice of a qualified estate-planning specialist before rearranging your affairs in an attempt to reduce the probate fees."