Financial institutions are besieged by requests to release the
assets of deceased people without a probated Will. A
"probated" Will is one that has been submitted for court
approval. The pressure to avoid probate results from high probate
fees (in Ontario "Estate Administration Tax" or
"EAT.") EAT is approximately 1.5% of the date of death
value of an estate's assets. Going without probate increases
the risks faced by Canadian financial institutions, and arguably
foments elder abuse. Wrongdoers use the desire to avoid probate
fees as a means to persuade older people to transfer assets –
most commonly by putting assets in joint ownership. We should be
encouraging people to probate Wills by simplifying the probate
process and reducing probate fees. This would reduce risks for
Canada's financial institutions, and also reduce the
opportunities for elder abuse or the maladministration of estates.
The Australian state of New South Wales has a probate system that
should be considered as a model for reform. The relevant sections
of the website for the New South Wales Supreme Court website can be foundhere, and here.
The main elements of the NSW system are:
The forms are relatively user-friendly,
The court website is very user-friendly,
An applicant for probate must first pay a fee of $43 Australian
to advertise on a searchable public website,
Probate fees are charged on a sliding scale with an absolute
maximum. At the low end, estates with assets under $100,000 pay no
fee and at the high end one with assets of $5 million or more pays
$5,406. (In Ontario an estate with assets of $100,000 would pay EAT
of $2000 and one with assets of $5 million would pay EAT of
The system allows executors to pay a fee of $43 Australian to
publish a public notice of intention to distribute the estate's
assets. This notice serves much the same purpose as advertisements
for creditors in Ontario, which are run in newspapers of broad
general circulation and cost very much more than $43.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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