Probate and Your Will


Probate and Your Will

Probate and Your Will

Have you written your will? Do you understand the complexities of probate and how to avoid it? It’s important to understand what is involved in disbursing the assets to the intended beneficiaries. If you need assistance writing a will that will avoid lengthy probate, call us at 587-410-2500 to find out how we can help.

In Canada, almost all wills are briefly probated to establish validity if there is an estate. For the purposes of this blog, we are discussing the Administration (extended probate) process necessary for those who die without a will.

Probate is the process taken on by the court to manage all of your legal and financial matters after your death if you do not have a will with a designated executor. The main problems associated with probate are time and money.

The Hazards of Probate

People who die without a will are said to have died intestate. Without a will to indicate your preferences for distributing your assets, the court will put your entire estate into Administration (probate). This will tie up all of your assets for an undetermined length of time. This time may be compounded by issues such as mortgages on a home that need to be paid, homeowners insurance for a home that is now vacant, and other expenses. The court-appointed administrator will need to ensure these payments in addition to their distribution responsibilities. During this time, probate fees are applied against the assets and can consume a significant percentage of the estate. In some cases, the estate may become completely drained just paying the expenses and related probate fees. The probate process may take up to a year.

For estates in Adminstration, the court appoints an administrator to manage the funds, pay the bills, and distribute the estate. This may not be your spouse, child, or family member. When distribution is determined, it may not be in a way that you would have preferred. Your spouse or children will not automatically get a certain percentage or an equal amount. In some cases, there are distribution plans from Provincial courts that are not at all what you would have wanted.

You don’t have to be wealthy to run into issues with Adminitration. If you have assets and you want your family to receive them, your best defense is a good offense. Write a will.

The Best Ways to Avoid Probate

Put Assets in Joint Accounts

  • Joint financial accounts are not subject to probate. The right of survivorship applies and the account will automatically go to the joint account holder.
  • Add a joint owner to home and car titles. Keep in mind that this gives the joint owner the ability to take out loans against property. Any decisions you wish to make will require their cooperation.

List Beneficiaries on Applicable Assets

  • Life insurance policies with listed beneficiaries go the person you have named and are not considered part of the estate (unless you have listed “estate” as the beneficiary).
  • Financial accounts with beneficiaries already named are not included in your estate.
  • RRSPs or TFSA with named beneficiaries are not subject to probate fees.

Reduce the Size of Your Estate

  • Put your money into registered accounts, such as RRSPs
  • Change financial accounts to joint accounts with rights to survivorship
  • Gift assets in legally acceptable amounts to your intended beneficiaries while you are alive

Write a Will

  • The best way to avoid probate fees is to write a will with the aid of an experienced wills and estates lawyer. By making your wishes clear in a will prepared by a lawyer, your estate will not be subject to a prolonged probate, especially if no-contest provisions are included.
  • Keep in mind that a will is a legal document and is available to the public during probate. Never include information that would compromise the estate, such as passwords to online accounts.

The key to ensuring that your assets go to whom you wish and that your estate not be tied up in probate is to write a will. Contact Verhaeghe Law Office to write your will today. 587-410-2500

How to Find a Reliable Wills and Probate Lawyer in Canada

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How to Find the Best Wills and Probate Lawyer in Canada

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If you're taking on the role of an executor, you may want to hire a probate lawyer. Here's your guide on how to find the right probate lawyer near you.

A deceased person leaves behind properties which can be a fortune or a headache for the surviving family members. It's important to have an prepare a Last Will and Testament which names and executor or executrix to help distribute your estate and settle your debts after you are gone. It's also the role of the executor to fulfill your last wishes regarding the disposition of your property and make final funeral arrangements.

Estate executors do not have to be lawyers or financial experts. However, they have a fiduciary duty to act as per the will of the decedent.

There are delicate legal and financial matters involved in fulfilling the directives outlined in the will. Dealing with courts and legal papers and filing estate tax returns can be confusing to nonprofessionals. It is important for executors to hire qualified wills and probate lawyers to oversee the process.

Keep on reading to learn more!

Roles of a Wills and Probate Lawyer

The administration of a decedent's estates goes smoother when he or she drafts a will before passing away. In such a case, a probate lawyer can offer legal counsel to the executor or beneficiaries of an estate. For instance, the lawyer can scrutinize the will and determine whether the deceased person wrote or signed under pressure.

For example, people with interest in the properties of an older adult with dementia can take advantage of them. A probate lawyer can help discover whether someone manipulated the will or forced the decedent to sign it.

Most probates go unchallenged apart from a few instances where they face objection. Examples of such situations are claims of forgery, inadequate witnesses, or if the provisions of the will contradict the law.

Apart from defending or challenging wills, probate lawyers can help executors with the following tasks.

  • Guidance on how to pay the decedent's bills and debts
  • Preparation and filing of documents as per the probate court
  • Determining whether there are any estate taxes owed
  • Management of the estate's checkbook
  • Collection and control of life insurance proceeds
  • Appraisal of the decedent's property
  • Finding and securing all the assets of the decedent

If the decedent happens to have died intestate (without a will), intestacy rules govern the distribution of the estate. The laws are government-imposed and this will fall into the category of Administration of Will instead of Probate of Will. Another scenario is when the executor or executors have died before (pre-deceased) the Testator of the Will (decedent). In this case, the Probate Lawyer will apply for Administration of Estate With Will Annexed.

If the deceased person left a surviving spouse but no descendants, the entire estate goes to the spouse. In the same way, the estate goes to the surviving descendants if the decedent does not have a living spouse. According to the Wills, Estates and Succession Act, the term descendant refers to all descendants in the deceased person's lineage.

Distribution becomes a bit complicated if the deceased person leaves a surviving spouse and descendants. Whichever the scenario, a probate lawyer should help the administrator to share the assets according to the intestacy rules.

Your Lawyer's Responsibilities

A probate lawyer can help the estate administrator (no will) in a similar way to an executor. However, the lawyer cannot disregard intestacy laws irrespective of the intentions of the decedent, the surviving spouse, or descendants.

A person who intends to become an estate administrator has to get renunciations from the decedent's relatives. These are statements which ascertain that the descendants have endorsed the administration of the assets to the individual.

A probate lawyer facilitates the process and files the renunciations with the court. The lawyer can also help the estate administrator with probate processes like securing assets, estate checkbook management, and determining estate taxes.

Types of Probate Lawyers

There are two general categories of probate lawyers. Transactional probate lawyers deal with the administrative aspect of probates. Probate litigators represent their clients in probate cases.

Some wills and probate lawyers handle the two sides of probates. However, it is wise to find an lawyer who specializes in the service you want.

Consult a transactional probate lawyer if the decedent passed away recently and you are looking to begin the probate process. Lawyers with experience in estate planning and trusts may be a perfect match for you.

A probate litigator can help solve a dispute regarding the will in court. The lawyer can also represent you if you are dissatisfied with the conduct of your current executor or probate lawyer. A litigator will also be suitable if you expect to face further legal battles concerning the estate.

Your lawyer should have experience in probate matters and must have represented many clients. The lawyer should know whether an action taken would infringe the laws governing a different discipline. If the estate in question is extensive, you might need a probate lawyer conversant with real estate law.

How to Find a Wills and Probate Lawyer

One of the best leads to a reliable probate lawyer is referrals from trusted people. Friends and colleagues can help you to populate a list of experienced lawyers from your region. Testimonials work best as they prove the lawyer's success in probate issues in the past.

If you can't get recommendations, perform an online search focusing on your area. It's upon you to do due diligence to single out a competent probate lawyer from the results. Look at the websites of individual law firms and contact the offices.

Once you have several prospective lawyers, begin the vetting process to select the most appropriate candidate. You can use the following criteria.

1. Qualification and Experience

Search for the biography of the potential lawyer with an emphasis on educational background and area of expertise. Aim for an lawyer with evidence of skill in probates, trusts and estates, and estate planning. You should also insist on a lawyer with a considerable period of practice.

2. Reputation and Track Record

Research in depth on the lawyer and his or her office. An online search for reviews can yield useful information. Read widely and get different opinions to avoid the influence of biased reviewers.

Study the content posted on the firm's website or blog to have a sneak peek of the lawyer's mastery of probate issues. Check if you can find any complaints and see how the lawyer has responded to them.

3. Membership in Associations

Check if the lawyer is a member of local and national associations for law professionals, especially in the probate line. Confirm that the candidate features in the bar of association and check their stand.

4. Other Certifications

Be sure that your probate lawyer is licensed to practice in your country. Further certifications are proof of extensive experience in the indicated areas of law. Focus on estates, trusts, or estate planning.

5. Retainer Agreement

Get a copy of the lawyer's retainer agreement for payment details before committing yourself to the contract. Ask for the lawyer to elaborate on all the details for you to understand the charges you should expect. This is to avoid unpleasant surprises when it's time to pay for the services. In Alberta, the Courts have established as a rule of thumb that Probate Lawyers can charge a base fee of $2250.00 plus 0.5% to 1% of the gross value of the estate for core legal services; which may vary depending on the complexity and size of the estate. There may be fees once the Order of Probate or Order of Administration is issued for non-core services such as distribution the estate, real estate transfers, follow-up correspondence with financial institutions, etc.

6. Unique Needs

Based on the circumstances surrounding your probate requirements, you may have to hire a lawyer with specialized skills. For instance, you may have to deal with parties who speak a foreign language. The lawyer should then understand the dialect.

7. Communication Skills

Some lawyers are so into law jargon that their clients get what they are saying. Don't hire someone if you can't understand them and they don't take time to explain themselves. The lawyer has to acknowledge that you are not an expert in law.

If you are a first-timer executor, you will probably want to do some of the processes by yourself to learn. You can also do this to save on the fees. A good lawyer should understand and respect that.

8. Location

Your probate lawyer does not have to be from your area. However, having the lawyer close to your residence will make it easier for you to meet.

If your estate owns properties in various jurisdictions, the lawyer should seek to have the Will sealed once Probate has been granted in the home jurisdiction then transferred to the outside jurisdiction (province) for probate in that area; this process must resonate with the laws of each province and be limited to the respective assets.

9. Conflict of interest

Do not hire a lawyer who has a conflict of interest in the probate. This may cause distrust and result in disputes and acrimony. Your role as an executor should not end up breaking family ties.

For instance, a lawyer who is also a beneficiary of the estate can look for ways to maximize his or her share. Again, even if the lawyer acts with decency, some descendants may still think there was some meddling.

10. Integrity

A lawyer needs to have values like integrity, wisdom, and skill. The job is not easy, and it doesn't rely on luck. Lawyers possess an enormous power which can be disastrous if misused.

A compromised lawyer can bend the law to favor some of the descendants. Ensure that the lawyer you are hiring is trustworthy and has no known integrity issues.

Preparing to Meet Your Potential Lawyer

After screening the list of lawyers you obtained, you can remain with three of your best match. Ensure that you have a face to face interview with each of them before getting down to business.

You have to create a relationship with the lawyer because you will be revealing sensitive information to them. The probate will involve large sums of money, and it will take some time. Therefore, you want to be comfortable with the lawyer you choose.

Some lawyers charge an upfront consultation fee while others offer free service. Be careful not to fall for unscrupulous lawyers as you chase a discount. You may have to set a budget for meeting with several candidates to get the best.

Successful lawyers are always busy, so you may have to book an appointment with them. If the lawyer you are targeting asks you to wait until a particular day, take your time.

However, you shouldn't keep waiting if the lawyer keeps on postponing the appointment. That could be an indicator that he or she won't be able to dedicate enough time to your probate. Find another one.

It is not unusual for lawyers to assign their legal assistants some of the responsibilities. You may have to work with someone else in some instances, but your lawyer should make it clear. Your relationship with them should determine if you should continue with the contract.

Interview with Your Probate Lawyer

When you meet with your candidate for the first time, be frank that you are interviewing a few others. Let them know that you don't have a deep understanding of estate planning and trusts. An experienced lawyer who has done it for years can skip the basics and go straight to complicated subjects.

There are many questions you can ask a probate lawyer depending on your situation. Below are some of the typical queries.

  • How long have you been practicing probate law and how many cases have you closed?
  • How do you charge for your services?
  • As an executor (or administrator), which areas of the probate can I handle without your intervention?
  • Our estate has offshore property. Can you carry out the probate process there? If not, can you recommend someone?
  • The decedent named another descendant and me as his estate co-executors, but my partner is not willing to get involved. Can I proceed anyway?
  • Who will prepare the decedent's final tax and estate tax returns?
  • How long will the probate process take, approximately?
  • How much do you think this probate will cost?
  • How much can I charge as executor of the estate

This is your opportunity to scrutinize the abilities of the lawyer. Make the best use of it. Ask all the questions you think about to have a mutual understanding with the lawyer before hiring.

Probate Lawyer - Final Thoughts

Finding a local competent probate lawyer can be tricky if you are handling estate distribution for the first time. This guide outlines the steps and tips for selecting your best fit.

Most administrative and litigation processes for probates are straightforward for lawyers. They involve routine paperwork. However, they can become complicated if someone raises a dispute, or there are many beneficiaries to consider.

People without experience in financial and legal matters can face challenges if they don't seek legal counsel. A misguided action can have serious consequences. A reputable probate lawyer can oversee the entire estate distribution process on your behalf.

Do you have any question? Just reach out to us, and we'll be happy to help.

Top 10 Reasons to Hire a Probate Lawyer in Canada

Top 10 Reasons to Hire a Probate Lawyer in Canada

Hire a Probate Lawyer

Estate planning is an important process to be carefully considered. Learn how to make an informed decision with our helpful tips on hiring a probate lawyer.

Have you been appointed as the administrator of a deceased loved one's estate? Are you considering hiring a probate lawyer?

Probate of an estate is the process of declaring the will of the deceased person to be valid and accurate and distributing their belongings. This makes the will officially the final say and will of the deceased person.

The result of this process is that the deceased's executor or administrator is granted control of the assets. It is subsequently the expectation that the executor will distribute the assets to the heirs, as they are listed in the final will.

It might not sound so complicated at this stage, but trust us it's really complex.

It's also a huge responsibility for one person to undertake. After all, the consequences of error could result in a personal liability for the executor. This could end up with an exhausting and stressful court case.

That's why many administrators conclude that they need to hire the services of a probate lawyer to help you through the probating of the estate. Keep reading to find out the top 10 reasons to hire a probate lawyer in Canada.

Why Hire A Probate Lawyer?

Probating an estate is a complicated and difficult process. As the executor, you could be expected to take on a range of responsibilities and duties related to the managing the estate and distributing it.

Without the assistance of a probate lawyer, you could tie yourself in knots and get very confused. It's simply not worth risking making a mistake. After all, even the slightest error could have grave consequences.

While being an executor named in the will involves a great deal of pressure and responsibility. Not to mention the emotional difficulty of recently losing a loved one. You don't want the legal problems that go with this if you make mistakes.

That's why hiring a probate lawyer can reduce the stress and risk of errors. With the help of a professional and experienced lawyer, you could find that the whole process goes much quicker as a result. Find out more about our legal resources, on our website.

it's important to remember that the cost of hiring a probate lawyer doesn't lie with you as the executor. But rather, the estate pays for any services or expenses involved in probating the estate.

Finally, not all Wills are probated. For example, if there is a jointly owned asset, such as a house or bank account, most likely (almost always) that asset will pass to the surviving owner. The same with an asset with a named beneficiary, such as a life insurance policy or R.R.S.P.; these assets will pass to the Beneficiary outside the estate; which negates the need to probate and estate if these are the only assets. Another important consideration are creditors. If a person owes money when the die -and- the only assets are those with a named beneficiary; it is most likely that unsecured creditors will not be able to seize these proceeds.

Let's take a closer look at the top 10 reasons to hire a probate lawyer in Canada.

1. Avoid Any Conflict

Probating an estate without the assistance of a probate lawyer can increase the probability of conflict within the family.

As a report for CBC warns, there is always a risk of tension between family members with any transfer of wealth. This can further intensify without legal assistance.

Plus, it's perfectly reasonable that people who are associated with the deceased would want to be included in the probating process.

However, if anyone other than the executor and probate lawyer become involved in the probate process, this could cause confusion and anger for many other members of the family and named heirs in the will.

That's why it's best to eliminate the chances of any conflict arising in the family. With the help of a lawyer, there will be greater clarity in the probating process. This also reduces the probability of misunderstandings.

And finally, by hiring a probate lawyer, you as the executor demonstrate to everyone that you are handling the estate planning process appropriately.

2. Speed Up Access to the Estate

You might be surprised to find out that the executor of the will doesn't get access to the estate straight away. This is only achieved after the probating of the estate.

But the problem is that this can take quite a long time. The time it takes mostly depends on the size and complexity of the estate. For instance, if the deceased only owned one bank account and one property it could be relatively quick. However, it is often much more complicated than this.

Even the shortest period of time you can go through the probate process is approximately three months. However, in many circumstances, it takes over a year to probate an estate.

This not only means that the executor doesn't get access to the property, but also the life insurance policy, investments and bank accounts.

However, with the help of a probate lawyer, you can hasten the process. This way the executor can gain access to the estate much faster, which means the distribution of the assets is completed much earlier than without any legal assistance.

3. Avoid Any Claims Against the Estate

There are many famous claims against estates that feature in the news, but this happens to ordinary people as well.

There are many different circumstances in which there are claims against the estate. For example, it's not uncommon for someone to claim that they should be mentioned in the estate when they're not.

Or, it could be that one of the beneficiaries claims that the estate is not being distributed fairly in accordance with the will of the deceased.

If the deceased has outstanding debts, this might also result in a claim against the estate.

However, many of these problems can be avoided or mitigated by hiring a probate lawyer. This is because this removes any feeling that individual members of the family are able to gain unfairly in the estate planning process.

4. Avoid Rejection by the Court

When probating an estate, the court requires certain legal documents to be completed and submitted. These legal documents require specific information that has to be set out in a particular way. If any mistakes are made in this process, this could cause the court to reject the estate.

But if you hire a probate lawyer to assist you with completing and submitting these documents to the courts, you could save yourself the risk of being rejected. With the correct and timely submission of the legal documents, you'll avoid wasting time doing it again.

After all, the court will keep rejecting your legal documents until they are right. If it takes you four and five times, so be it. But you can make sure it's done correctly and efficiently with the help of a lawyer.

5. Get Responses to Any Questions

Being the executor of the will is not something that many people experience many times in their life. Therefore, it's perfectly normal to have endless questions about the probating and estate planning process.

This could range from anything from - does every asset need require probate or just some? - to - Who pays the outstanding debts and bills of the deceased?

Many of these questions can be quite stressful and risky if left unanswered. You might be having sleepless nights wondering whether you have notified everyone who needs to know about the passing away of the deceased person.

You can make sure that you are well-informed and supported by hiring a probate lawyer to answer any question you have - no matter how big or small.

6. Identify Potential Financial Problems

As the executor, you're expected to take responsibility for any outstanding debts and any other expenses required in the probate and estate planning process.

Handling their own finances is probably enough trouble for many people. Taking care of someone else's is extremely time-consuming and difficult on your own.

Whether it's the unpaid income tax, general funeral expenses or personal loan payments, there are many potential financial problems that can arise after the death of a loved one. But it's difficult to find out about them and to address them.

Every deceased person's financial situation is different. And therefore, the obstacles and problems are always different.

Debt and loans are especially confusing and problematic. They can be handled most effectively with the legal advice of a probate lawyer.

7. Deal with Finances Correctly

After identifying the financial problems, such as unpaid loans, it's time to deal with them. But without the legal assistance of a probate lawyer, there's always the risk of over or underpaying.

The other problem that you might encounter as the executor of the will is the requirement to notify any creditors of the deceased. It is usually required to present a death certificate along with other legal documents to the creditors.

There are many potential pitfalls when it comes to handling the finances of the deceased person. But you can easily overcome many of these with the aid of a probate lawyer.

This way you can make sure you're completely on top of any financial issues so that you don't make any mistakes in such a sensitive area.

8. No Probate Lawsuits

There are often reports of disputes and tensions among family members over the details of the will of the deceased person. The worst case scenario is that this disagreement results in a family probate lawsuit.

This is definitely something you want to avoid. After all, any estate lawsuit is always going to take time and money. But there is also the emotional cost of damaging family ties.

Therefore, by hiring a probate lawyer, you can significantly reduce the probability of a lawsuit going to court.

9. Support the Executor

Being the executor of the estate is a huge responsibility. There are many things to consider and take into account as the executor. There is also a variety of different tasks to carry out, which partly depends on the specific circumstances of the estate of the deceased.

The executor has to read the will, get in touch with all of the beneficiaries and mediate disputes between people in the family. But these are only the primary tasks of the executor. There are also minor responsibilities from tying up loose ends to informing people of their loved one's death.

It is in the middle of this huge workload that the support of a probate lawyer is invaluable. Not only can they offer you support with the everyday responsibilities, but they will also use their experience to guide along the way.

10. No Delays

There are a whole bunch of possible delays that could prevent the executor from carrying out his/her responsibilities.

This is especially the case if the will has not been validated. If this happens, it's possible for the deceased's bank to deny any access to the executor. This can result in substantial delays to the whole process.

You can have peace of mind by hiring a probate lawyer to contact banks, local authorities and other third parties. With experience and knowledge of how to handle such matters, they are likely to avoid any unnecessary delays in the process.

Although it's true that you can probate the estate by yourself, this poses a significant risk of delays. By hiring a lawyer, you can ensure that everything is taken care of and that all the beneficiaries receive their assets in a timely matter.

Hire a Probate Lawyer

As the executor, you don't have to leave yourself with all of the responsibility of probating the estate. There are many legal pitfalls that you can into that can result in litigation against you.

To avoid any of the legal issues and get the support you need for the estate planning, hire a probate lawyer.

With an experienced lawyer by your side, you'll be able to ask any questions you have along the way. We have probated 1000's of estates; and, just as important have walked 1000's more through the process of avoiding the expensive cost of probate. We do offer free reviews of these types of situations to help you determine if probate is required or not.

If you need a lawyer, don't wait until it's an emergency. If you have any questions about the probating process or the validation of a Will, head to our contact page to start a conversation with us or call us on (587) 410-2500 today.