“My Friend told me that she has a Will that doesn’t need Probate. Can I get one of those please?”
Ahhhhh the Will that doesn’t need Probate! Wouldn’t that be nice? This is something I am frequently asked about by clients, and the answer is always the same “there is no such thing as a Will that doesn’t need Probate because the Will itself does not govern whether Probate is necessary”.
What Determines Whether a Will Needs Probate?
Whether or not a Will “requires Probate” will depend upon the assets the deceased holds, whether those assets are jointly owned, or are assets that allow beneficiary designations. It is so important to consult a Lawyer during your Estate Planning process, because to have a properly drafted Will that may not need Probate, requires a clear look at the assets you hold in order for your Lawyer to come up with your Estate “Plan”. Your Estate “Plan” being the unique structure of your assets and whether they are to pass inside or outside your Estate.
How Can Estate Planning Help Avoid Probate?
Asset structuring requires a significant amount of what I like to call “homework”. After my initial Estate Planning meeting with my clients where we discuss all their assets, their “homework” list when they leave my office will often involve:
- Ensuring their bank accounts are joint (with their spouse) and intended to flow to the joint surviving owner.
- Ensuring that their Tax Free Savings Accounts have a Successor Holder or beneficiary named.
- Ensuring that their Life Insurance has a named beneficiary or beneficiaries.
Structuring of assets jointly or by beneficiary designation is the only way to ensure that there is no “Estate” to Probate, thereby creating the elusive “Will that doesn’t need Probate”. Any assets in the deceased’s sole name will likely have to go through Probate (unless they are minimal).
Should You Transfer Assets into Joint Ownership to Avoid Probate Fees?
Probate fees in BC are low. I would caution anyone considering transferring assets into joint names with anyone (other than your beloved spouse who is intended to be your sole beneficiary anyway) just to avoid Probate fees because you are putting those assets at risk (distrustful joint owners, creditors of the joint owner, etc., etc.). Careful consideration and cautiousness are always required when transferring assets into joint names.
Need Help with Your Estate Plan?
If you’re preparing or updating your estate plan, Vanessa DeDominicis at Pushor Mitchell LLP can help you review how your assets are held, consider beneficiary designations, and make informed decisions about how your estate will be managed and distributed. Contact Vanessa at dedominicis@pushormitchell.com to discuss your estate-planning needs.
Frequently Asked Questions About Wills and Probate in BC
Can You Make a Will That Doesn’t Need Probate?
There is no special type of will that automatically avoids probate. Whether probate is necessary depends on the deceased’s assets, how they are owned, and whether they have beneficiary designations.
Do Jointly Owned Assets Have to Go Through Probate?
Assets held jointly with a spouse and intended to pass to the surviving joint owner may pass outside the estate without probate. How the assets are structured and who is intended to receive them are important considerations.
Can Naming a Beneficiary Help Avoid Probate?
Yes. Assets such as Tax Free Savings Accounts and life insurance policies may pass outside the estate when appropriate successor holder or beneficiary designations are in place.
Is It Worth Transferring Assets into Joint Names to Avoid Probate Fees?
Not necessarily. Probate fees in BC are low, and transferring assets into joint ownership can expose them to risks involving the joint owner or their creditors. These risks should be carefully considered before making changes.
This information applies as a general rule but may change depending upon the specific circumstances of your own situation. You should consult a lawyer before acting on any of this information. If you have any questions, please do not hesitate to contact Vanessa DeDominicis directly at 250-869-1140 or dedominicis@pushormitchell.com Vanessa practices in the area of Wills and Estates with Pushor Mitchell LLP in Kelowna, B.C.
