Laws on Probate of a Will in Canada

by Beverly Bird
    Probate law in Canada differs across provinces.

    Probate law in Canada differs across provinces.

    Pixland/Pixland/Getty Images

    Probate laws in Canada differ somewhat from province to province. The basic structure of the probate process remains the same, however. The executor of an estate is responsible for gathering and inventorying the decedent’s property, paying his debts and the expenses of his estate, and distributing what remains among his beneficiaries.

    Legal Wills

    All wills must be in written form in Canada, but some provinces, including Alberta, accept handwritten or holographic wills. These do not require witnesses, but two disinterested individuals must witness and sign all other wills. If one of your witnesses is also a beneficiary, she cannot receive her bequest. The legal age for making a will in most states and provinces is 18.

    Locating the Will

    Under Canadian law, you do not need a special court order to check the decedent’s safe deposit box for his will. You can take a copy of the death certificate to the bank where you believe he stored it and bank personnel will open the box. If you’re the named executor, you and the banker will inventory the box’s contents and he will give you the will. Canada also provides a Vital Statistics Agency where the decedent might have registered his will, as well as notice of where he put it for safekeeping. After you locate it, Canada’s Estate Administration Act requires you to send a copy to all the decedent’s beneficiaries and heirs. Heirs are the family members who would have inherited if he had not left a will.

    Laws Affecting Family Members

    After the executor has submitted a will for probate, Canada allows the decedent’s immediate family members to petition the court to have it changed. Under the Wills Variation Act, applicable in most provinces, the spouse or any child of a decedent can object to the terms of a will if it disinherits them or if they feel the decedent didn’t adequately provide for them. In most cases, marrying after you write your will invalidates it. If you divorce, your decree voids any provisions or references you made to your spouse.

    Probate Assets

    Canada does not require all wills to pass through probate. Most states and provinces offer probate exemptions if the value of the decedent’s probate property does not exceed a certain amount. The amount varies from jurisdiction to jurisdiction. Probate property generally excludes assets held with another individual as joint tenants, pay-on-death accounts, and insurance and retirement accounts with named beneficiaries.

    Taxes and Other Fees

    Canadian provinces impose probate fees based on the value of the decedent’s probate assets before the executor pays any debts or expenses of the estate. This fee can be anywhere from .5 to 1.5 percent. If you’re the executor of a complicated estate and you’re not comfortable handling its administration on your own, you can hire an attorney at the expense of the estate. Canada does not have an estate tax, but the decedent’s estate is responsible for paying tax on any income generated after his death.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

    Photo Credits

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