For some Canadians, strategies to minimize probate fees1 are an essential part of estate planning. But did you know that it’s not always necessary or in everyone’s best interests to reduce these fees? One of the most important things you can do for clients who ask about probate planning is encourage them to talk with a lawyer – one who’s well versed in estate matters. You may also learn more about minimizing the costs of probate, keeping in mind that some (but not all) clients need a formal plan. This article is the first in a 3-part series offering insights into important aspects of probate fee minimization:

  1. Basic facts related to probate fees and beneficiary designations
  2. Outright gifts
  3. The use of trusts

BASIC FACTS

Assets that go directly to a named beneficiary by law (e.g., due to joint tenancy with right of survivorship2) or a beneficiary designation (e.g., in a life insurance policy) aren’t usually subject to probate because they bypass the estate. But it’s also true that if probate is required for even one asset, then probate fees are usually payable on the value of all assets that pass through the estate. The probate court application requires confirmation under oath of the total value of the estate, and fees are calculated on those values.

In addition to probate fees (which are highest in Nova Scotia and Ontario), executor fees (typically between 2.5 and 5% depending on provincial guidelines and the complexity of the estate) and legal costs can come into play. It’s for these reasons that some clients may benefit from learning about strategies that can minimize probate fees.

Probate fees – Frequent articles in the press tend to reinforce the general view that probate must be avoided. On large estates, these fees may seem like a lot of money, but they pale in comparison to marginal rate taxation on income and capital gains. This chart shows how the calculation of probate fees for a $1 million estate varies from province to province:3

Province Rates Fee on assets of $1 million>
Ontario No tax on estates $1,000 or less
For estates over $1,000, $5 per $1,000 for first $50,000, plus
$15 per $1,000 thereafter
$14,500
British Columbia No fee for estates up to $25,000
$6 per $1,000 for estates over $25,000 up to $50,000, plus $14 per $1,000 thereafter
$13,450
Alberta $35 for estates up to $10,000
$135 for estates over $10,000 up to $25,000
$227 for estates over $25,000 up to $125,000
$400 for estates over $125,000 up to $250,000
$525 for estates over $250,000
$525
Saskatchewan $7 per $1,000 $7,000
Manitoba $70 for estates up to $10,000, plus $7 per $1,000 thereafter $7,000
Quebec Quebec doesn’t levy probate fees based on the value of the estate. Instead, it charges a flat fee depending on whether the application is from a natural person or a legal person. A natural person is a flesh and blood individual. A legal person is an entity like a corporation. Notarial wills don’t require probate in Quebec. $105/$118
New Brunswick $25 for estates up to $5,000
$50 for estates over $5,000 up to $10,000
$75 for estates over $10,000 up to $15,000
$100 for estates over $15,000 up to $20,000, plus $5 per $1,000 thereafter
$5,000
Newfoundland & Labrador $60 for first $1,000
$0.60 per $100 thereafter
$6,054
Nova Scotia $83.10 for estates up to $10,000
$208.95 for estates over $10,000 up to $25,000
$347.70 for estates over $25,000 up to $50,000
$973.45 for estates over $50,000 up to $100,000, plus $16.45 per $1,000 thereafter
$15,778
Prince Edward Island $50 for estates up to $10,000
$100 for estates over $10,000 up to $25,000
$200 for estates over $25,000 up to $50,000
$400 for estates over $50,000 up to $100,000, plus $4 per $1,000 thereafter
$4,000
Northwest Territories $25 for estates up to $10,000
$100 for estates over $10,000 up to $25,000
$200 for estates over $25,000 up to $125,000
$300 for estates over $125,000 up to $250,000
$400 for estates over $250,000
$400
Nunavut $25 for estates up to $10,000
$100 for estates over $10,000 up to $25,000
$200 for estates over $25,000 up to $125,000
$300 for estates over $125,000 up to $250,000
$400 for estates over $250,000
$400
Yukon Fee is the discretion of the court (though not more than $140) for estates valued at less than $25,000
$140 for estates over $25,000
$140

Did you know?

Some Canadians believe that probate fees run as high as 10% or more. If they base their planning on inflated numbers, they may end up implementing a strategy where the cost far outweighs the benefit.

The extent to which a client should consider a probate planning strategy varies greatly by province. When analyzing the pros and cons of any plan, it’s important to consider:

  • the separate aspects or elements of each asset, and
  • the ways in which these elements interact to best meet the client’s needs.

This may give clients a different perspective on planning and the opportunity for more sophisticated solutions.

Tip

As you help clients understand their options consider documenting the advice you provide about the risks and rewards associated with different probate strategies. When the time comes, some beneficiaries may ask for insight into their loved ones’ estate planning decisions – and these records could help.

Beneficiary designations – life insurance – When there’s a named beneficiary on a life insurance policy (other than the estate) proceeds pass directly to that beneficiary, avoiding probate fees on the proceeds. Remember that there are times when flowing funds into an estate may support other estate planning goals, like establishing a testamentary trust for a spouse or minor children. In other cases clients may buy life insurance to provide the money their estate needs to pay debts and taxes, thereby avoiding a forced sale of assets.

Beneficiary designations – registered plans – Unless a tax-free rollover provision applies (such as those for spouses or common-law partners), designating a named beneficiary for a registered retirement income fund (RRIF) or registered retirement savings plan (RRSP) removes registered proceeds from the estate’s control but leaves the tax bill with the estate. When the plan owner dies, the plan proceeds are paid directly to the named beneficiary, without any holdback or deduction. But some clients may not realize that a tax slip is then issued to the deceased plan owner’s estate. This could result in beneficiaries of the estate having to pay the income tax on proceeds that were actually received by someone else.

Designating a spouse as beneficiary, while avoiding probate, can also destroy any opportunity for income splitting after death. For example, suppose John Smith4 died on January 1 in any given year. Also assume he had a simple will, leaving everything to his wife, Jane. John will have virtually no taxable income for that calendar year.

If John designated his estate as beneficiary for all or a portion of his registered plans, probate fees would be payable on the portion designated. But John’s personal credits, marginal tax rate, loss carry forwards, and many other factors could result in his registered plans being tax-free or lightly taxed in his estate. The remainder would then be given to Jane as after-tax capital. (This is especially so if John made substantial charitable gifts through his will.) In this situation, accepting and paying probate fees could result in more after-tax money going to Jane than with most other forms of planning.

If John died late in the year or with significant income from other sources, having an estate designation provides some flexibility. A joint election between the estate trustee (in this case, Jane) and Jane (in her personal capacity) could result in some or even all the proceeds going to Jane, into her own registered plan, and not being taxed in the estate. Depending on the provincial probate fee structure, this flexibility could be worth the price.

PART 2 – OUTRIGHT GIFTS

Our next article in this 3-part series will focus on outright gifts. Watch for it next month. In the meantime, visit the Money for Life legacy needs page on sunlife.ca/advisor or contact your sales director to learn more.

Continue reading part 2 of our series — Probate fee minimization: Important facts, tips and traps

This article is based on a financial bulletin authored by Jeffrey Waugh, Director, Tax and Insurance Planning, Sun Life Financial, Probate Minimization Strategies: Tips and Traps, November 2014.


1 In Ontario, taxpayers no longer pay probate fees. Instead, they’re subject to the Estate Administration Tax Act, 1998 (EATA), introduced in response to the Supreme Court of Canada ruling in Re Eurig Estate, (1998) 2 S.C.R. 565, which held the former provincial probate fees constituted an invalidly introduced tax. This statute retroactively imposed a valid tax precisely equal to probate fees that had been collected since 1950. Despite the small variations in terminology across the provinces, the terms probate and probate fees are still used in this article.

2 Joint tenancy with right of survivorship means that when one owner dies, property is transferred directly to the surviving owner. Co-owned life insurance doesn’t automatically provide a right of survivorship, and co-owners will be treated as tenants in common. For clients who want survivorship rights, they should appoint contingent owners. Joint tenancy with right of survivorship does not exist under Quebec civil law.

3 Additional administration/filing fees may apply in some provinces. Rates believed to be current as of March 2016, but subject to change. Consult applicable legislation for verification.

4 All names used in this article are for example purposes only (they do not reflect real people or actual events).

Originally published on Advisor.ca