What is Probate?
Probate is the court process whereby the court appoints a representative to manage your estate (if you have a Will generally your executor is appointed as the representative). Usually probate is required when you have assets which require a third party (i.e. the Land Title Office, ICBC or financial institutions) to assist with the transfer of the assets to your representative. Depending on the circumstances these third parties will only accept the representative’s authority to handle the assets if a grant of probate is obtained.
When your representative begins the probate process they will be required to conduct an inventory of the assets and liabilities that fall within your estate. This value of the inventory will then be calculated up to determine the probate fees owed. According to the Probate Fees Act the probate fees should amount to around 1.4% of the total value of the estate. Therefore if you have an estate with a value of $2,000,000.00 probate fees would be around $28,000.00.
Please note that this is a generalization of the probate procedure. I have not elaborated on how probate fees can be paid, how items are to be valued, etc.. If you wish to learn more about the probate procedure please read our other blogs relating to probate or contact our office.
What assets fall within my estate?
When calculating the value of your estate it is important to note that some assets do not become a part of your estate. Some of the assets that fall outside of your estate such as jointly owned property with a right of survivorship or insurance policies, RRSPs, RRIFs, and TFSAs that you have named beneficiaries on. In most circumstances all other assets are included in the valuation of your estate. The assets that are included within your estate can be broken into two categories:
- assets that a third party will only accept an executors authority to handle the assets. These include real estate, bank accounts in your name alone, vehicles and insurance policies or registered accounts that name the estate as the beneficiary (“Assets Requiring Third Party Approval”); and
- assets that do not require third party approval generally include corporate shares, shareholder loans, art, and other household articles.
What happens if I have a single Will?
If you have a single Will your representative will conduct an all of the assets that fall within your estate, including the Assets Requiring Third Party Consent and those assets that do not require third party consent.
At your passing you owned the following assets:
- a TFSA with $50,000.00 which you have named your children as the beneficiaries;
- a house with a value of $500,000.00; $50,000.00 in your savings and chequings account;
- a 2015 Ford F-150 with a value of $20,000.00; and
- Shares in a corporation with a fair market value of $1,000,000.00.
If you have a single will and pass away the TFSA will transfer to children in accordance with the beneficiary designation you set with the bank. The remaining assets (including the savings and chequings account, the 2015 Ford, your house and the shares in the corporation) will be listed as assets in the inventory. The total value of the estate should be around $1,570,000.00. The estate will pay approximately $21,980.00 in probate fees.
What happens if I have multiple Wills?
As mentioned above, in B.C. our laws allow us to use multiple wills. Multiple wills means you can have a will dealing with the Assets Requiring Third Party Consent (your “Probate Will”) and those assets that fall within your estate but do not require third party consent (your “Non-Probate Will”).
Using the example provided above the amount of probate fees would change considerably. The executor of the Probate Will would disclose the Assets that Require Third Party Consent in the inventory. This would include the savings and chequings account, the 2015 Ford, and your house) for a total value of $570,000.00. Your probate fees would approximately be $7,980.00. Therefore your estate avoided paying $14,000.00 in probate fees.
The executor of the Non-Probate Will would not provide an inventory as they are not under the same legal requirements. Instead they will collect and distribute the assets in the Non-Probate Will in accordance with the terms set out in the Non-Probate Will.
Why doesn’t everyone have Multiple Wills?
Unfortunately the use of multiple Wills is not appropriate for every situation. When deciding to use multiple Wills you should consider the following:
- Increased Costs. Making multiple wills requires a more complex estate plan. There is always a chance that there are higher costs with administering multiple estates as well. You need to decide whether the savings in probate fees will offset the higher drafting costs.
- Issues with Wills Variation Claims: According to WESA your spouse and/ or a children have the right to challenge the distribution of your estate within 180 days from the date that the grant of probate is issued by the courts. Because the representative of the Non-Probate Will is not getting a grant of probate the limitation period for a Wills Variation Claim never ends. This places indefinite risk to the representative of the Non-Probate Will as a disgruntled children/ spouses could make a wills variation claim at any time (even 20 years in the future).
- Different Executors. The representative for your Probate Will and Non-Probate Will cannot be the same person. The executor of the Probate Will must disclose any assets that pass to them. For that reason you must appoint a different executor for the Non-Probate Will. This means that the representatives must work together to complete your estate.
Multiple Wills are one of many useful tools in an estate planner’s tool belt. They do not work in every scenario and it is important to consult with your lawyer to canvas all estate planning options. Our Estate Planning Team would be happy to explore your circumstances and canvas your available estate planning options.
For more information, please contact any member of our Estate Planning Team.