What is Probate in Canada: Process, Fees, and How To Avoid

Dealing with the loss of a loved one is difficult enough without having to figure out the complicated legal and money maze of probate, too. Probate is an important but often confusing part of settling an estate in Canada.

Our guide will explain everything you need to know about probate, including what it is, when it is required, how the process works, probate fees, and tips for minimizing the probate process.

What is Probate in Canada?

Probate is the legal process that validates the last will and testament of a deceased person and formally appoints the executor named in the will. The court examines whether the document accurately represents the testator’s final wishes, whether the will is valid, and whether the appointed executor has the right to manage the estate. Once approved, the executor receives a grant of probate – a court document that financial institutions require before releasing assets.

The process serves three critical functions. First, it protects beneficiaries by ensuring only the legitimate will governs asset distribution. Second, it shields executors from personal liability if competing wills emerge later. Third, it provides banks and land registries with legal certainty when transferring significant assets.

If a person dies without a will, they are considered “intestate.” In this case, the court must appoint an estate administrator to manage the estate. This administrator distributes the assets according to a default formula set by provincial law, which may not align with the deceased’s wishes.

When is Probate Required in Canada?

Not every estate in Canada must go through probate. The requirement depends entirely on the type of assets the deceased owned and how they were held.

Probate is typically required in the following situations:

• The deceased person owned assets solely in their name, such as bank accounts, non-registered investment accounts, and individually owned real estate. These assets cannot be transferred until the court grants the executor the necessary authority.
• Institutions or third parties may request validation of the executor’s authority. Banks, mortgage companies, brokers, and other entities often require probate before releasing assets, especially for larger accounts.
• For complex estates or those with significant assets, courts provide oversight to address potential disputes and ensure a fair settlement.
• If there is uncertainty about the will’s validity or if it may be contested, probate helps establish the legal authenticity of the will and confirms the executor’s role.

What Assets Don’t Require Probate?

Certain assets are structured to bypass the estate and, therefore, avoid probate. This is a core component of effective estate planning. These assets fall into several key categories:

• Assets with designated beneficiaries. Registered accounts like RRSPs, RRIFs, and TFSAs, along with life insurance policies, pass directly to the named beneficiary. The funds do not become part of the estate.
• Jointly owned assets with right of survivorship. When an asset, such as a home or bank account, is owned jointly with a right of survivorship, it automatically transfers to the surviving owner upon death.
• Assets held in a trust. Assets that were transferred into a trust before death are not part of the estate and are not subject to probate.

Additional circumstances where probate may not be strictly required include Quebec notarial wills, Indigenous assets on reserve land, and exceptions granted at some institutions’ discretion.

Who Handles the Probate Process in Canada?

The executor named in the will manages all probate responsibilities. Multiple executors must act unanimously unless the will specifies otherwise. Courts may remove conflicting executors and appoint independent administrators.

If there is no will, a close family member can apply to the court to be appointed as the estate administrator. This role carries significant legal and financial responsibilities.

The public guardian steps in when no suitable executor exists. This government office manages estates for vulnerable individuals without families. Their involvement typically increases costs and extends settlement timelines.

Do You Need a Lawyer for Probate?

Executors can complete probate independently, but complexity often justifies legal assistance. Simple estates with clear wills and cooperative beneficiaries may not require lawyers, while complex situations involving business interests, foreign assets, or family disputes benefit from professional guidance. Lawyers ensure proper documentation, deadline compliance, and liability protection while potentially expediting court processing through established relationships and procedural expertise.

How Does the Probate Process Work in Canada?

The probate process involves four key steps, although specific requirements vary slightly by province:

Step 1: Applying for Probate

The executor or estate administrator applies for probate with the provincial court where the deceased resided. Exact courts include the Ontario Superior Court of Justice, British Columbia Supreme Court, and Nova Scotia Probate Court.

The application documents typically required include the following:

• The original signed last will and testament of the deceased
• The death certificate
• A detailed list of assets and liabilities in the estate
• An affidavit or declaration from one of the will’s witnesses
• Any required notices provided to beneficiaries
• Payment of probate application fees

Step 2: Court Review and Notification Period

The probate court reviews the submitted application to validate the will and confirm the appointment of the executor.

Courts will often post public notices of the filed application and allow a set notification period (generally 30 days) for anyone to come forward with objections or challenges to the will.

If no disputes arise, the court will formally approve the application and issue a Grant of Probate or equivalent order appointing the executor.

Step 3: Paying Probate Fees

Before the process is complete, the executor must pay any probate taxes or fees owed to the court based on the value of the estate assets reported in the application.

Step 4: Settling Debts and Distributing Assets

Once probate has been granted, the executor can proceed with additional estate administration duties like:

• Paying any legitimate creditor claims
• Filing final tax returns and paying taxes
• Obtaining tax clearance certificates
• Transferring assets like real estate and investments
• Distributing the remaining property to beneficiaries according to the will

Since probate involves settling debts, it’s important to understand what happens to your debt when you die, which can affect how your estate is handled and what your loved ones may receive.

How Long Does Probate Take in Canada?

On average, the typical probate process takes between 6 and 12 weeks from submitting an application to receiving the Grant of Probate from the courts. However, the process can take as little as 4 weeks for a simple estate or as long as 6-12 months for complex, disputed, or high-net-worth estates.

Factors impacting the probate timeline include:

• Size and complexity of assets – More time may be required for unique assets like businesses, intellectual property, or foreign holdings.
• Will challenges or disputes – Any contests to the validity of the will must be resolved before probate, which can add months or even years.
• Location of assets – If assets are located across multiple jurisdictions, separate applications may be required, extending timelines.
• Tax filings and clearance – Obtaining final CRA tax clearance adds time before the estate can be distributed.
• Executor competence and availability – Professional executors tend to move quickly than family members unfamiliar with the process.
• Legal assistance sought – Securing professional legal or tax help can create delays.

Keep in mind that every estate is different, and timelines can change depending on the situation.

What are Probate Fees by Province in Canada?

Probate fees or estate administration taxes charged on the value of an estate can vary significantly across different provinces and territories in Canada:

British Columbia

British Columbia uses a tiered fee structure that increases with estate value. The province provides a $25,000 exemption before any fees apply, then charges progressively higher rates for larger estates. In British Columbia, probate applications are filed with the Supreme Court of BC.

The main requirements for probate in British Columbia include providing the original will, death certificate, confirmation of the executor’s ID, and a list of estate assets.

Alberta

In Alberta, probate applications go through the Court of Queen’s Bench. Alberta maintains the only maximum cap on probate fees among Canadian provinces. This cap structure makes Alberta particularly attractive for larger estates, as fees never exceed $525 regardless of estate size.

Required documents include the original will, executor’s application, and information on assets and debts.

Saskatchewan

Saskatchewan applies a flat percentage rate of 0.7% to all estates, regardless of size, making it straightforward to calculate costs for any estate.

The main procedural requirements include providing the original will, death certificate, executor ID confirmation, and a list of estate assets.

Manitoba

Manitoba’s Court of Queen’s Bench (Winnipeg Centre) handles probate applications. As of November 2020, Manitoba eliminated probate fees entirely, making it the most cost-effective province for estate administration. This elimination represents a significant saving for Manitoba residents compared to other provinces.

Ontario

In Ontario, probate applications go through the Superior Court of Justice. The province employs a sliding scale system:

So, for a 1 million estate, Ontario charges approximately $14,500 in probate fees, representing one of the highest probate cost structures in Canada.

Quebec

Quebec operates under a unique civil law system with minimal probate requirements. The province charges only a $237 court filing fee for notarial wills. Only holographic wills or wills signed before witnesses require probate with a flat fee. The main requirements are the original notarial or witnessed will and the death certificate. More information at Courts of Justice Act.

Nova Scotia

Nova Scotia maintains one of the more complex fee structures among Atlantic provinces. The province uses fixed fees for smaller estates before transitioning to a percentage-based system for larger estates.

New Brunswick

New Brunswick employs a stepped fee structure with modest costs for smaller estates. The province provides relief for estates under $5,000 while maintaining reasonable fees for larger estates. On average, probate fees amount to 0.5% of the estate’s total value.

Prince Edward Island

Prince Edward Island employs a moderate stepped fee structure that balances affordability for smaller estates with reasonable costs for larger ones. Its fees remain among the lowest in Atlantic Canada.

The required documents include the original will, death certificate, executor’s application, and a list of estate assets and debts.

Newfoundland & Labrador

Newfoundland and Labrador uses one of the simplest fee structures in Canada. The province charges a minimal flat fee for small estates and a low percentage rate for all other estates.

Probate applications in NL go through the Supreme Court. Required documents include the original will, death certificate, executor application, and estate assets/debts.

Yukon

Yukon offers the most generous exemption threshold among Canadian jurisdictions, charging no fees for estates under $25,000.

Northwest Territories

Northwest Territories uses a capped system with maximum fees of $435, providing predictable costs for estate planning. The territory’s structure balances accessibility for smaller estates with reasonable fees for larger ones.

The required documents are the original will, death certificate, executor application, and a list of estate assets/debts.

Nunavut

In Nunavut, the Nunavut Court of Justice handles probate applications. The province maintains a capped fee structure similar to the Northwest Territories:

How Can You Avoid or Minimize Probate in Canada?

While probate cannot be entirely avoided in most cases, some strategies can potentially reduce estate size or create asset transfer mechanisms that bypass probate requirements.

Joint Asset Ownership

Joint ownership with right of survivorship with a spouse or family member allows automatic asset transfer to surviving owners without probate. This applies to real estate, bank accounts, and investment holdings.

Joint ownership requires careful consideration of tax implications and relationship dynamics, as adding adult children as joint owners may trigger immediate tax consequences.

Beneficiary Designations

Designating specific beneficiaries on registered accounts like RRSPs, TFSAs, pensions, and insurance policies allows these assets to be transferred directly to beneficiaries without passing through the probate estate.

Gifting Assets Before Death

Giving away assets before death through early inheritance or trusts can reduce the size of the eventual estate subject to probate taxes. However, gifting too aggressively can leave insufficient funds if health or long-term care costs arise later in life.

Multiple Will Strategies

Some provinces allow multiple wills, separating probate-required assets from those avoiding probate. The primary will covers real estate and assets requiring court validation, while the secondary wills handle private company shares and other non-probate assets. This strategy requires careful legal drafting to prevent conflicts between documents and professional legal advice for proper implementation.

These strategies won’t completely remove the need for probate, but they can help lower the amount of fees and delays your loved ones might face.

What Happens If You Avoid Probate Illegally?

Executors should use caution before distributing any assets without proper probate, as ignoring probate when required can lead to serious consequences:

• Estate trustees may incur personal liability for improperly administered assets.
• Financial institutions can freeze unauthorized asset transfers without the need for probate.
• The will may be considered legally invalid without court endorsement.
• Estate actions can be reversed or challenged after distribution if probate is later granted.
• Executors may be compelled by courts to complete the probate process even after avoidance.
• Significant tax penalties from the CRA can result if clearance certificates are not obtained through proper probate procedures.

Except in extenuating circumstances, executors have a fiduciary duty to administer estates properly in accordance with provincial laws. This generally includes obtaining probate when required.

How to Dispute or Challenge Probate

In certain cases, beneficiaries or potential beneficiaries may wish to dispute the validity of a will during probate. Grounds for contesting probate could include:

• Questions over the mental capacity of the testator when the will was made.
• Suspected undue influence, manipulation, or duress exerted on the deceased.
• Possible fraudulent actions by the named executor, lawyer or witnesses.
• Discovery of a newer will or unaccounted assets.
• Belief that the will does not follow the required formalities or contain proper signatures.

Those looking to dispute probate should consult a probate litigation lawyer and must file their contest or objection within the set limitation period, often 30 days after public notice. Contesting probate can involve lengthy legal processes and court proceedings to resolve the dispute before probate can be granted.

If the challenges are unsuccessful, probate will eventually be granted and proceed as normal. But if issues are proven, the court can declare the will invalid and make alternative estate arrangements.

Executors also have the right to defend against unsubstantiated probate contests to uphold the validity of the will. Experienced legal counsel is key.

The bottom line

Probate provides important court validation of wills and protects executors as they carry out estate administration in Canada. Even though loss is always hard, probate doesn’t have to be. By understanding the procedures and requirements and focusing on one step at a time, you can effectively carry out final wishes to honour those we care about.

FAQs about What is Probate in Canada