How to avoid probate fees?

Nobody likes to pay more taxes than they must.  Nobody likes spending money on lawyers and the courts, either.  Avoiding the probate process and probate fees is one reason to do your estate planning.  Just don’t make it the driving reason.

Doing estate planning solely to avoid the probate process and probate fees is like choosing the place you retire based solely on the weather.  Great weather, like avoiding probate taxes, is wonderful.  But in choosing your retirement home, you also want a safe place, clean water, good food, and access to medical care.  That’s why nobody retires in Burma.  If avoiding probate taxes means more income taxes, more problems settling your estate, and more bad blood among your children, then the cost of avoiding probate fees is not worth the trouble!

What is probate?

The probate process is a legal process that occurs after death and is intended to prove that a Will is indeed the Last Will and Testament of a deceased person.  At the conclusion of a probate process, a court of law grants an executor the power to settle an estate.  The probate process involves various expenses; for example, court fees and lawyer’s fees.  Without a grant of probate, the institutions that hold or register your assets are unlikely to deal with your executor.  Those institutions include banks and the land titles office.

You cannot avoid the probate process by not having a Will.  If there is no Will, then the probate process is replaced by a legal process to appoint an executor to settle your estate and decide how to distribute it.  This process is likely to be more expensive than the probate process.

Probate fees, if levied by the province where you live, are based on the assets you own at the time of your death.

How to avoid Probate Fees?

The only way to ensure that your estate will completely avoid probate taxes is to have nothing in your estate when you die.  Other strategies to avoid the probate process and minimize probate fees include:

  1. Giving away your assets before you die (directly to others, or by putting your assets into trusts)

  2. Designating beneficiaries (other than your estate) on your registered investments, life insurance policies and other investments held through life insurance companies, and

  3. Holding your assets jointly with others.

Each of these methods can be appropriate at various times, but each also has potential drawbacks, therefore these methods must be used carefully. Remember, that avoiding probate is only one goal of your estate planning.  Don’t place too much emphasis on this issue alone.

 

Written by Jim Yih

Jim Yih is a Fee Only Advisor, Best Selling Author, and Financial Speaker on wealth, retirement and personal finance. Currently, Jim specializes in putting Financial Education programs into the workplace. For more information you can follow him on Twitter @JimYih or visit his other websites JimYih.com and Clearpoint Benefit Solutions.

6 Responses to How to avoid probate fees?

  1. Hi Jim, Probably beyond the scope of this article but another great way to avoid probate is not to have a will at all!
    Now before people go jumping all over me I think it is imperative that everyone have a will for the just in case event. But if you have time to plan for your eventual death then using a trust can have the majority of your assets pass outside your estate.
    I will you an actual case to explain. An 84 year old widow was seeing her health decline through more frequent trips to the hospital. Her daughter and she decided it was time to sell her home and move into a retirement home where she could be better taken care of.
    The bulk of her assets (now liquid) were transferred into a trust where she was the income beneficiary and the capital beneficiaries were spelled out in the trust indenture the same as they were in her will. The transfer took place over two tax years to split the deemed disposition of the assets transferred into the trust.
    Upon her death the trustee was quickly and easily able to payout the assets to the capital beneficiaries and the majority of the woman’s assets avoided probate!

  2. Good list. I would add drafting two wills: one for assets subject to probate and a second for assets not subject to probate. A good lawyer would be able to advise when it is advisable to have 2 wills and what should go into each.

  3. You mentioned that trying to avoid probate could have pitfalls. I’d appreciate if you could explain the pitfalls of using insurance products for this purpose.

    I look forward to your response. Thanks.

  4. Hi Jim, In one of your articles you stated “if a beneficiary is designated in the RRIF contract, the RRIF value will not be included in the calculation of probate fees on death.” Are all RIFF’s with a designated beneficiary, such as a daughter, exempt from the probate fee calculation (Estate Administration Tax in Ontario)? Or more to the point, are RIFF’s held by a financial institution, such as a bank, exempt from probate fees similar RIFF’s held by an insurance company? I’ve seen conflicting information. Thank you in advance for your reply. Sincerely, Rob

Leave a reply