Should you try to avoid probate?

Many people believe that probate (court oversight of the estate administration process) should be avoided at all costs. While for some people in some jurisdictions (notably BC and Ontario), avoiding probate is a worthwhile estate planning activity, in Alberta, putting a lot of effort into avoiding probate is not necessarily worth the effort.


BC and Ontario

In BC and Ontario, probate fees are based on the size of the estate. Probate fees for a million dollar estate in Ontario will be somewhere around $15,000. If your estate is looking at paying that amount of money for an estate to be probated, it probably makes sense to take some steps to minimize the probate fees.


A common strategy in BC and Ontario is to use two wills, one for “probatable” assets and another will for “non-probatable” assets.


Alberta

In Alberta, probate fees max out in the hundreds of dollars, rather than in the thousands of dollars. Here, the two-will strategy isn’t commonly used.


Often, people residing in Alberta will attempt to avoid probate for certain assets, more out of convenience, than as a way of saving probate fees. One common strategy for avoiding probate on certain assets is to make use of joint ownership.


It often makes sense for spouses and common-law partners to hold certain property (real estate and some bank accounts) jointly. With the right of survivorship implicit in joint ownership, if one joint-owner spouse dies, the surviving joint owner spouse will then automatically become the sole owner of the property in question. While joint ownership makes sense for spouses, it’s somewhat risky as an estate planning strategy for other relatives, such as parents and children, and business partners.


Another strategy for avoiding probate, at least on some assets, involves putting some of your assets into a family trust. This strategy makes sense in certain situations, but it has its share of disadvantages as well. It may end up increasing taxes that are payable in some cases, and it may restrict what you can do with your property while you’re still alive.


It should be noted that the probate process also has certain advantages. It arguably keeps everything above board when administering an estate, thereby protecting the beneficiaries of an estate, and it can also help protect an estate and an executor from certain types of litigation.


For most people living in Alberta, a fixation on avoiding probate at all costs probably doesn’t make sense.


Weninger Zhang

an Association of Independent Law Practices

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