What are probate fees and how to avoid them (2024)

This article is not intended for residents of Quebec as probate fees do not apply on the estate of Quebec residents.

Part of any good estate plan is making sure that your estate has enough money to pay any final taxes, including an estate administration tax, or “probate fees.”

What is probate?

Probate is the court process generally required before a deceased person’s assets can be transferred.

Let’s take Dr. Isaac as an example. The family physician was widowed and close to retiring when he died suddenly. A few years before his death, Dr. Isaac had updated his will and appointed one of his four children, Teresa, as his executor.¹

Dr. Isaac has about $2 million in various investment accounts with his financial institution. When Teresa goes to the bank with Dr. Isaac’s will in hand, she’s told she needs probate in order to deal with his assets. From the bank’s perspective, the will is not enough. The bank can’t risk releasing the assets to the wrong person and wants to be sure the will presented is indeed Dr. Isaac’s last will and testament.

Teresa needs to ask the court to recognize that her father’s will is valid and that she, the executor, has the legal authority to deal with his estate assets — a process that can be very long.

What are probates fees and who pays them?

Probate fees are essentially a tax on estate assets; they are also referred to as probate tax or estate administration tax. The amount is usually based on the total value of the deceased person’s estate. Depending on how assets are held, this may include the primary residence, a cottage or vacation property, investment property, business assets, registered accounts (RRSPs, tax-free savings accounts, etc.) that don’t have beneficiaries specified, non-registered accounts, and bank accounts.

Probate fees are normally payable to the provincial or territorial government where the deceased lived and paid from the estate’s assets.

How much are probate fees in Canada?

In November 2020, Manitoba eliminated probate fees. In the rest of Canada, they vary from nominal amounts to significant ones, with the highest fees in British Columbia, Ontario and Nova Scotia.

To give a sense of the amount, here are the current probate fees for all the provinces and territories calculated on estate assets of $1 million and $2 million.

Probate fees in Canada by province

Source: https://www.taxtips.ca/willsandestates/probatefees.htm (January 22, 2022).

† In British Columbia, the probate fee includes a $200 administration fee.

Strategies to reduce or avoid probate fees

Depending on the province you live in and the assets you have, it might be worthwhile to look at strategies to reduce or avoid probate fees.

Gifting assets: One way is to give your assets to your beneficiaries while you’re still alive. Obviously, this is not a sensible plan if you still need those assets yourself. Also, giving your assets to your beneficiaries while you are alive can raise significant tax and legal issues that often make this type of planning unattractive.

Beneficiary designations: Designating beneficiaries on RRSPs, registered retirement income funds, tax-free savings accounts, life insurance policies and pension plans prevents these assets from passing through your estate and thus avoids probate fees on them.

Joint tenancy with right of survivorship: Adding another person as a joint owner of assets is a common estate planning strategy. Spouses, for example, often hold their assets jointly. When the first spouse dies, his or her portion passes directly to the surviving spouse, bypassing the estate. This way, the surviving spouse avoids the expense and delay of probate.

Trusts: Transferring assets to an inter vivos trust can help reduce or eliminate probate fees. Because the assets are transferred while you’re alive, they will not form part of your estate and will bypass probate. “Alter ego” trusts and “joint partner” trusts are two types of inter vivos trusts that you may be able to set up once you have reached the age of 65.

Multiple wills: Certain provinces — Ontario and British Columbia, for example — allow the creation of multiple wills, which can reduce probate fees. (It can also reduce other court costs on certain types of assets that don’t need probate.) Multiple wills are often used by incorporated physicians, because shares in a private corporation do not require probate. With this strategy, you create a separate will to deal with the corporation, and this will is not submitted for probate. The result is that probate fees are only charged on the value of the other will, which deals with assets that do require probate (e.g., real estate and non-registered investments).

While these strategies can help you reduce or avoid probate fees, they can raise significant tax and legal issues. Please discuss this with your legal and tax advisors. Depending on your circ*mstances, as well as your estate goals, some of these strategies may not be suitable for you. It’s important to look at your entire financial plan, including your estate plan, when considering any of these strategies.

To learn more about estate planning and probate fees, contact an MD Advisor*.

*MD Advisor refers to an MD Management Limited Financial Consultant or Investment Advisor (in Quebec), or an MD Private Investment Counsel Portfolio Manager.

¹ An “executor” is called a “liquidator” in the province of Quebec and an “estate trustee” in the province of Ontario.

The above information should not be construed as offering specific financial, investment, foreign or domestic taxation, legal, accounting or similar professional advice nor is it intended to replace the advice of independent tax, accounting or legal professionals.