Some Canadians will go to great lengths to avoid probate fees and to reduce taxes applied to their estate. Indeed, estate planning strategies such as adding an adult child to the title of primary residence or a cottage, or as a joint owner of a non-registered account, can unknowingly expose you or your child to potential costs and unnecessary risks.
Before you tie yourself in knots trying to avoid probate fees, let’s answer some important questions about what exactly probate is, which assets are subject to probate, and what you can do, if anything, to reduce or avoid them.
We’ll also look at what people get wrong about probate, along with the potential pitfalls that can be caused trying to avoid probate – at the expense of good tax, financial, and estate planning.
Estate planning is a complicated topic, so I sought the help of three of the brightest minds I know in financial planning to put together a comprehensive article on the subject; Mark McGrath, an investment advisor in Squamish, Markus Muhs, a portfolio manager in Edmonton, and Jason Pereira, a financial planner in Toronto.
What are probate fees?
First up, here’s a Q&A with Mark McGrath to help explain what probate fees are all about.
Q: Which assets are subject to probate fees?
A: When an asset is left to your estate, it may be subject to probate.
Certain assets that allow you to name a beneficiary may pass outside your estate – for example, RRSPs, TFSAs, and life insurance policies where you’ve named an individual as the beneficiary.
If assets are held in joint tenancy with rights of survivorship, or owned by a trust, they may bypass probate as well.
Other assets like personal non-registered accounts, bank accounts, personal effects, or real estate do not allow you to name a beneficiary, so in many cases those assets will be part of your estate.
Each province has its own probate fees and thresholds. In Ontario for example, where probate fees are now known as ‘estate administration tax’, that threshold is $50,000. Only amounts above this threshold are subject to probate fees.
It’s worth noting that while assets can pass to your surviving spouse without tax, that doesn’t mean the asset won’t form part of your estate.
If you own a non-registered account in only your name for example, this can be rolled over to your surviving spouse at cost, meaning any unrealized capital gains can be deferred until the death of the survivor. But that account would still be part of your estate, and subject to probate fees.
Q: What do people get wrong about probate?
A: Probate is an important process in winding up an estate. It validates that your will is current and indemnifies people and institutions that hold your property from giving it out to the wrong beneficiaries.
Often, planning is done with the intention to avoid probate fees. And often, that planning has unintended consequences.
For example, adding an adult child as a joint owner on your bank account is advertised as a way to allow the bank account to pass to the surviving owner, outside of the estate. But it’s not that simple – adding a signer to an account might trigger resulting trust rules, where the asset is deemed to be held in trust for the estate.
In certain cases, adding a joint owner will be a disposition for tax purposes. That means if you add a joint owner, like an adult child, to any property that has increased in value – you may be subject to capital gains taxes on a portion of the increased value.
I also see people leaving their RRSPs to their adult kids rather than the estate to avoid the probate fees, but without realizing that the beneficiaries and/or the executor could be on the hook for the tax bill. Sometimes it could be best to leave the RRSPs to the estate to avoid this issue, even if it means probate fees will be charged.
Probate fees range from nil in some provinces, to a high of 1.695% in Nova Scotia. Going to absurd lengths to eliminate a relatively small fee could cause more problems than it’s worth.
How to reduce probate fees
Q: So, what can people do to help reduce probate fees?
A: Where appropriate, name individuals as beneficiaries on allowable accounts – RRSPs, TFSAs, and life insurance policies for example. But be aware that naming beneficiaries can have unintended consequences, like a disproportionate inheritance for certain beneficiaries.
For higher-net-worth Canadians, using trusts may be appropriate. These are complex structures that come with other costs, but assets held in trusts generally do not go to your estate and are therefore not subject to probate.
Gift money while you’re still alive. There is no gift tax in Canada, though gifting money to a spouse can have tax consequences. Gifting to adult children who are beneficiaries of your estate keeps that money away from probate and allows you to see your heirs benefit from the gift while you’re still alive.
Add joint owners to your assets, but seek professional advice first. There can be adverse tax consequences if not done correctly, or the assets may still pass to your estate.
Seek professional help. Estate law is complex and can vary by province. While it may seem costly, hiring a good estate lawyer will often pay for itself in the long run.
Probate fees in dollar terms
Q: Finally, can you give a short example of a final estate and what the probate fees would be in dollar terms?
A: Sure. Frank and Jane own the follow assets in Ontario, BC:
|Vehicles and personal items||$40,000||$40,000|
|Life insurance policies||$500,000||$500,000|
They have named each other as the beneficiaries on their RRSPs, TFSAs, and life insurance. And their joint non-registered investment account is a result of each of them saving and contributing to the account – it is owned as joint tenants with rights of survivorship.
Frank passes away. What assets are subject to probate, and what are the costs?
The RRSPs, TFSAs, and life insurance death benefit go directly to Jane, bypassing Frank’s estate. Since she is a joint owner on the non-registered account, that passes to her directly as well – no probate.
Frank’s personal non-registered account and his vehicles and personal items, however, do form part of his estate, since he was unable to name a beneficiary on this property and it was owned only in his name.
The total value of those assets is $190,000, exceeding the probate threshold in Ontario of $50,000.
The amount above that threshold – $140,000 – is subject to Ontario probate fees, which are 1.50%.
$140,000 x 1.50% = $2,100 in probate fees.
Nobody likes to pay fees if they can be avoided. But engaging in complex planning to avoid $2,100 in fees may not have been worth the cost and complexity involved.
Thanks to Mark McGrath for explaining in plain language what exactly probate is, walking through how to reduce or avoid fees, and for giving us a clear example of what those fees might look like in dollar terms. Be sure to follow Mark on Twitter.
Common questions about avoiding probate
Now that we have a good overview of what probate is, which assets are subject to probate fees, and what people can do to reduce or avoid probate fees, let’s get into some common questions that financial planners hear from their clients about avoiding probate.
Here’s my Q&A with Markus Muhs on this topic.
Adding child(ren) as joint owners of a non-registered account
Q: Markus, my first question for you is about adding your child(ren) as joint owner of a non-registered account. What do people hope to accomplish with this? What do they get wrong about it? What can they do instead?
A: First and foremost, I need to disclose that I’m not a legal expert, and with a lot of these big ticket decisions your readers should consult with a lawyer specializing in wills and estates before going forward with any particular strategy.
Spend the money on professional legal advice, even if it’s a few thousand dollars, to avoid losing thousands to inefficient taxation of your estate—or worse—litigation, should your beneficiaries fight about it.
With that out of the way, in most provinces (outside of Alberta and Quebec) probate fees are applied on an estate as a percentage of assets. It varies province to province, but usually there’s a small or flat rate applied to a smaller estate, or the first portion of a bigger estate, then a fairly punitive amount to larger estates.
In Alberta and Quebec it’s a flat 3-figure dollar amount to cover the administration of probate, while in other provinces it’s unofficially an estate tax.
With that said we’re not talking anything huge, like the estate taxes in some other countries. The province of BC, for example, applies no fee to the first $25,000, 0.6% to the next $25,000, 1.4% for the excess.
Probate fees on a $1 million estate would then come out to slightly under $14,000. That sounds like a lot, but when you’re also considering the taxes due on remaining assets in RRSPs/RRIFs, capital gains, and other legal costs that could come up, it’s not really.
“Most Canadians would be better served applying more thought to a tax-smart decumulation strategy (what we financial planners help them accomplish) than worrying about probate fees.”
Probate fees become more of an issue for single people, typically the last-to-die spouse. When the first spouse dies, there generally isn’t much of an estate to be probated, as most assets pass with joint right of survivorship to the surviving spouse, while registered plans pass tax-free or tax-deferred to the survivor.
So, after that first spouse has passed the widowed parent (or their children) often debate making assets joint in order to bypass probate.
Some things that can go wrong with this:
For bank accounts, it might not be clear that the purpose is for the account to pass to the child upon death of the parent.
The standard procedure when making an account joint at a bank is to have the account holders sign a joint signature card. If there isn’t an explicit joint with right of survivorship agreement signed by all account holders and properly witnessed, the account might not pass to the survivor.
This means upon death the account gets frozen along with the deceased’s other accounts, and the bank considers it part of their estate.
For investment accounts, there could potentially be litigation issues if a large account is left joint with right of survivorship to one child and other children are left out.
“It may not always be clear whether an account was made joint for administrative purposes, or estate purposes.”
Adding your child(ren) to the title of your primary residence
Q: What about adding your child(ren) to the title of your primary residence?
A: It’s one of the most common questions, as the primary residence is usually the largest asset left behind by the parent.
A primary residence for an individual or married/common-law couple is exempt from capital gains taxes, so a parents’ home is exempt, and a child’s primary residence is exempt.
If the child is put as joint owner on the parent’s home, the parent’s 50% ownership of the home remains tax exempt (and capital gains up to that point is of course exempt), but the child then partially owns a second property, and that share of the property is not exempt.
Let’s say a $1 million property goes up in value by $200K from the point it was made joint to when the parent passes away: $100,000 of that capital gain is the child’s, and half of it is taxed at their marginal tax rate. These taxes can easily become more than whatever probate fees were saved.
Q: So, what should a parent do instead?
A: In general, don’t make the primary residence joint with your child(ren). Expect it to flow through your estate and expect to pay probate fees on that.
Otherwise, if you plan on diverting from that path, only do so after consulting an estate planning lawyer – not because you read online that it’s a good idea or because a friend or family member suggested it.
Naming your child(ren) beneficiaries of your registered accounts
Q: What about adding your child(ren) as beneficiaries of your registered accounts?
A: This obviously makes a lot more sense for the surviving spouse, as it’s an easy way to bypass probate.
There are some pitfalls that might come up if an estate isn’t properly planned though.
Taxes can’t be avoided, and on RRSPs/RRIFs when kids are named beneficiaries of the plans, the full amount being withdrawn is taxable all at once in the deceased’s terminal tax return.
What trips up some people is the process in which such plans are collapsed: no tax is withheld; the full gross amount goes from the RRSP/RRIF to the beneficiary, so there needs to be other money left in the estate to pay the tax.
A common error that may come up is an example where the parent has a $1 million RRIF and net $1 million in other estate assets. They might think it’s simplest to name their son beneficiary of the RRIF while their daughter is named in the will as sole beneficiary of the estate.
Not only will the timing be way off on who gets what, and when (the son gets the RRIF money right away, as it doesn’t need to pass through probate, while the daughter waits upwards of a year for probate to pass), but the daughter in this case would be left with a tax bill (upwards of $500,000) for the RRIF withdrawal.
When a widowed parent names beneficiaries on their registered plans, the best practice is either to name multiple beneficiaries for their registered plans (splitting the money as the overall estate is intended to split) or just naming the estate. The latter will of course result in more probate fees in most provinces and take a lot longer till the beneficiaries get their money, but in certain cases can make for a cleaner splitting of assets and settlement of an estate.
Thanks so much to Markus Muhs for clearly answering these common questions about probate. Be sure to follow Markus on Twitter.
More probate pitfalls to consider
Next up we have Jason Pereira, who dives further into the potential risks involved when people try to avoid probate.
Q: Jason, what are some of the unintended consequences of adding your child(ren) to the title of your house, cottage, or non-registered account?
A: Moving accounts and real estate to joint ownership is a popular strategy with the masses for avoiding probate.
People do this because, when an asset or account is owned joint with the right of survivorship, the account will bypass the estate and the holdings will not be subject to probate.
The problem is, while simple to do, joint ownership opens up a minefield of potential issues.
First, people almost never get proper legal, tax, or financial advice before doing this – which can lead to many issues.
It helps to be aware of what probate even means. For most people, probate fees are tiny to non-existent.
“Yes, executing an estate can be a pain, but in many cases it’s better to pay probate to ensure your money goes where you want it to, and you can minimize or negate the chance of family conflict or abuse.”
Q: What sort of tax implications do people need to consider?
A: By default, a change in ownership triggers taxation. As such, any deferred capital gains will be taxable when ownership changes.
Q: What are some other issues that can arise?
A: In Canada, it is possible to legally separate beneficiaries from legal ownership. This means someone could be added as an owner, but NOT be the beneficiary of it. That would mean there is no disposition.
How to pull this off: you need documentation proving that the intent was just for probate reasons and is not a beneficial ownership change.
“RBC (and maybe others) now supports Joint Gift of Beneficial Right of Survivorship accounts that are designed for this.”
This type of arrangement constitutes a bare trust under the law and now requires disclosure of all parties and annual trust filings with CRA. Failure to comply will attract penalties.
Other risks to be aware of
- This is not a way to split income. All income is taxable in the hands of the person who originally purchased the asset.
- You also lose full control over the property. Now someone else has the right to decide how the asset is used.
- The asset is now exposed to the liabilities of the new owner. If you add your child as joint owner and they have creditors come after them they will try to come after the asset. Note that reporting as a trust helps prevent and protect from this.
- Family law issues. The asset is now exposed to the spouse of the new owner. Add your kid, and if they get divorced, the spouse could come after it. Again, reporting as a trust helps prevent and protect from this.
- Estate issues. You can no longer control the distribution of that asset via a will. The asset is inherited by the joint owner, but the tax bill is the responsibility of the estate. If the will is not drafted accordingly, and there is more than enough money to pay the tax bill in the estate, then that joint owner could try to “screw over” the other beneficiaries by keeping the asset and sticking them with the bill. This likely wouldn’t hold up in court, but it could be tried. Never blindly trust people to do the right thing. There is a TON of case law on this.
- Elder abuse issues: There is also a ton of case law where children that were added to joint accounts used the asset for personal use and made the original owner worse off.
Consider alternatives that are well documented, such as an Alter ego / Joint partner trust. And for crying out loud, get proper legal advice.
Thanks so much to Jason Pereira for shedding light on the many issues that may arise when you proactively attempt to avoid probate fees. Be sure to follow Jason on Twitter.
Many thanks again to Mark McGrath, Markus Muhs, and Jason Pereira for answering questions for this comprehensive article on probate fees and pitfalls to avoid.
It’s a complicated topic that gets brought up a lot, and there is a lot of misinformation floating around online and at the water cooler on how to avoid probate.
The key takeaways are that, in most cases, probate fees are minimal, and probate ensures the proper disbursement of your assets after you die.
There’s no need to tie yourself in knots trying to avoid probate fees if it means opening yourself and your child(ren) up to other potential issues.
If you do have a complicated estate or specific wishes you want carried out, get proper advice from an estate planning lawyer before you start adding children as joint owners and beneficiaries of assets and accounts.
That includes proper documentation declaring your intentions behind these actions. Don’t leave important matters up for interpretation.