By Alexander Levy and Jane Shpolska
As you recover from the loss of a loved one, you are faced with estate administration challenges and dealing with the bureaucracy of the estates courts.
A lot has been said and written on the difficulties of administering an estate. Unfortunately, there are limited ways to streamline the process. Difficulty or delays in obtaining probate can place an unnecessary burden on family members. However, proper estate planning and advice can help mitigate many of these challenges.
Here are a few suggestions which we hope you will find helpful when administering an estate:
- Have a Plan:
Some of the most complex estate administration cases we deal with are due to the fact there is no Will in place, or the estate trustees appointed were not aware of their appointment. It can be difficult to locate and assess the value of the deceased’s assets starting from scratch.
However, if you are aware that you have been appointed as an estate trustee, to the extent possible, inform yourself regarding the assets in the estate and ensure you will have the requisite access to these assets.
When planning your estate, consider if certain assets will pass outside of your estate, saving not only probate tax, but the hassle of obtaining probate.
Here are a few tips which will allow you to avoid probate application and payment of probate tax:
- Discuss with your legal and tax advisor any potential benefits of transferring real estate you own, into joint ownership with the right of survivorship.
- Consider having named beneficiaries (and alternate beneficiaries) for your insurance policies, investment, and other bank accounts.
2. Where there is a Will there is a way:
Where probate is unavoidable, it is important to be prepared and well organized:
- A properly drafted Will and planning makes a substantial difference in easing any administrative burden and we encourage you to plan ahead. The cost and time spent on a properly drafted Will, will save you estate trustees significant time and money.
- Good records keeping is like good housekeeping. A list of major assets and passwords is invaluable to an estate trustee.
- Always try to plan and have a reserve fund to cover interim expenses (such as mortgage payments, utilities, common expenses, maintaining adequate insurance and other expenses) to protect assets.
- Professional legal advice is important to make sure application and supporting documents are prepared to the satisfaction of the estates court (including using correct forms, paper size, fonts – which may be small but important delays that may lead to delays and rejections). A probate application can take several months for the courts to process. Minor errors can lead to frustrating delays, particularly as bills mount and the estate trustees have limited access to the deceased’s capital.
Here is some good news with cautions:
- Since April 1, 2021, a simplified probate process is available for small estates valued at up to $150,000 as an alternative to the current probate process.
- The new probate process for small estates is optional and the existing probate proceeding is also available to estates valued under $150,000.
- The Small Estate Certificate will list the assets to be administered, so good records keeping is critical.
- Because of the limitations on the authority of an estate trustee under a Certificates of Appointment in the small estate process, it is important for estate trustees to obtain advice about the appropriate process to use.
Houser, Henry & Syron is always here to help you out in any ordinary or extraordinary situation. Please do not hesitate to contact us. We are here for you.
Since 1934, Houser Henry & Syron LLP has provided legal services to Canadian and foreign private businesses, helping them deal with complex legal challenges to grow and to manage risk successfully. We help our clients with mergers and acquisitions, commercial real estate, reorganizations, shareholders disputes and agreements, commercial agreements, employment issues and financing. We also pride ourselves in practising in Plain English.