Probate is the legal process of authorizing the administration of an estate after a person has died. It involves proving the validity of the deceased’s will, and approving the appointment of the executor or administrator, who will then have authority to distribute the deceased’s assets to their beneficiaries.
What Happens in Probate?
The first step in probate is to apply to the court for a grant of probate. This application must be accompanied by the deceased’s will, if there is one. If there is no will, the court will appoint an administrator to administer the estate.
Once the court has granted probate, the executor or administrator will begin the process of administering the estate. This includes gathering the deceased’s assets, paying the deceased’s debts, and distributing the remaining assets to the beneficiaries.
Following obtaining probate the administration process can vary in length depending on the complexity of the estate. However, it typically takes several months to several years to complete. Finalizing it with Canada Revenue and obtaining a final certificate that the deceased and their estate currently owe no more potential income taxes, may require an extended period.
Who Needs Probate?
Not all estates require probate. If the deceased’s assets are below a certain value, or if the assets are held in joint ownership or in a trust, probate may not be necessary.
However, most estates will require probate. This is especially true if the deceased owned any significant assets, such as real estate or investments.
How Can I Avoid Probate?
There are a few things that you can do to avoid probate, such as:
- Create a living trust. A living trust is a legal arrangement that allows you to transfer ownership of your assets to a trustee, who manages them for your benefit and your beneficiaries while you are alive and distributes them to your beneficiaries after your death. Assets that are held in a living trust do not have to go through probate.
- Use joint ownership. If you own an asset jointly with another person, the surviving joint owner will automatically become the owner of the asset upon your death, if it is clear that is your intent. This means that the asset will not have to go through probate.
- Use beneficiary designations. Many types of assets, such as bank accounts, life insurance policies, and retirement accounts, allow you to designate beneficiaries. If you designate a beneficiary, the asset will be transferred directly to the beneficiary after your death and will not have to go through probate.
Probate can be a complex and time-consuming process, but it is necessary to ensure that the deceased’s wishes are carried out and that their assets are distributed to their beneficiaries.
If you are considering creating a will or estate plan, you should consult with an experienced estate planning lawyer to discuss your options.
This article is for informational purposes only and is not legal advice. Contact us today to discuss your specific situation.