Having a valid Will when you die does not mean that your estate will not have to be probated. When you draft a Will you will say who you want to inherit your stuff (all of the assets you own) and you appoint someone in your Will (the Executor) who is responsible for paying your debts and then distributing your stuff among the beneficiaries you have named in your Will.

The moment before your death you own stuff; maybe a house, a bank account, a car, and RRSPs for example. The moment you die your stuff will go to one of two places; either directly to a beneficiary/ joint owner or if the asset is in your name without a named beneficiary then to your “estate”.

So let’s look at Fred Flintstone, who is killed in a freak accident while working for Mr. Slate at the quarry at age 60.   Fred and Wilma are prepared; they have valid Wills appointing each other as Executor and Pebbles as their second choice. Wilma now needs to decide whether she has to probate Fred’s estate.

When Fred died he and Wilma owned their home jointly as joint tenants. This means Fred’s share of the house transfers to Wilma upon his death and now Wilma is the sole owner. The house does not go into Fred’s estate “pot”.   Fred has appointed Wilma his beneficiary on his RRSPs and life insurance policy, so these assets go directly to Wilma and do not go into Fred’s estate. But when Fred’s mother died she left Fred a cottage on Wetrock Lake. The deed is in Fred’s name alone and Fred could not add Wilma as a beneficiary to this type of asset, so the cottage goes into Fred’s estate.

Even though Fred left everything to Wilma in his Will, including the cottage, Wilma cannot transfer the cottage from Fred’s estate to herself or sell it to another owner without a Grant of Probate. This means Wilma will have to make an application to the Probate Court to be authorized to act on behalf of the estate. This permission document from the Court is called a Grant. The Probate Court will ensure that the Will is valid and then will police Wilma’s work to ensure that she follows Fred’s instructions in the Will, pays Fred’s debts, pays the taxes due to CRA and makes the gifts to the beneficiaries named in the Will. In exchange for overseeing Wilma’s work the Probate Court charges a tax on the value of all of the assets in the estate, in this case, only the cottage. Once Wilma has the Grant from the Court authorizing her to wind up Fred’s estate and she knows Fred’s debt is paid in full she can transfer the deed for the cottage from the estate to herself or a buyer.

In my experience my clients try hard to avoid probate because they don’t want the hassle involved nor do they want to pay probate tax. But in some cases it is better to have an asset go to your estate rather than directly to a beneficiary on your death. It’s best to consult a lawyer with expertise in estate planning to advise you about your specific situation and then you can make an informed decision.