Is the Estate Ready for Probate?

Which Assets Need Probate — and Which Bypass It

Probate is only required for assets that institutions or land registries refuse to release without a court grant. Real estate in the deceased's sole name, bank and investment accounts above institutional thresholds (commonly $25,000–$50,000, varying by bank), and other titled property in the deceased's name alone are the classic probate assets. Assets that bypass probate entirely include real estate and accounts held in joint tenancy with right of survivorship, and anything with a valid beneficiary designation — RRSPs, RRIFs, TFSAs, pensions, and life insurance in Canada; IRAs, 401(k)s, and POD/TOD accounts in the US. Those pay directly to the survivor or named beneficiary on a death certificate and claim form.

The probate-versus-bypass split matters twice: it determines whether an application is needed at all, and it sets the tax base, because bypass assets are excluded from the estate value on which probate tax is calculated. Some estates avoid probate completely; others need it for a single asset. That is why the first practical step of any administration is classifying every asset — the classification drives the application, the fees, and the timeline.

Probate Taxes and Fees: What the Grant Actually Costs

Canadian probate costs vary enormously by province. Ontario's Estate Administration Tax exempts the first $50,000 of estate value and charges $15 per $1,000 (about 1.5%) above it — roughly $14,250 on a $1 million estate — and requires an Estate Information Return within 180 days of the grant. British Columbia charges about 1.4% over $50,000; Alberta uses flat fees capped at $525 regardless of estate size; Quebec charges only nominal court fees for notarial wills. In the US, most states charge court filing fees on a schedule (typically a few hundred to a few thousand dollars) rather than a percentage tax, though attorney fees in states with statutory fee scales, like California, can function like a percentage of the estate.

Because tax is levied on the sworn value of probate assets, planning strategies concentrate on shrinking that number. The best-known is Ontario's multiple-wills practice: business owners execute a primary will for assets requiring probate and a secondary will covering private company shares and other assets the corporation will transfer without a grant. Only the primary will is probated, so the business value — often the largest single component — escapes the 1.5% tax entirely. Executors handling an estate with dual wills must file the correct will; probating the secondary will by mistake destroys the saving.

The Original-Will Problem and Application Timelines

Probate courts require the original signed will. If only a copy exists, the applicant must prove the original was validly executed, establish its contents, and rebut the legal presumption that an original last traced to the deceased's possession was destroyed with intent to revoke it — a special application supported by affidavits from witnesses and the drafting lawyer. This single issue derails more applications than any other, which is why locating the original (home safe, safety deposit box, the law firm that drafted it, provincial or state wills registries) is step one of probate readiness. Where there is no will at all, the closest relative applies as administrator and the estate passes by intestacy — in Ontario, the surviving spouse takes a $350,000 preferential share before dividing the rest with children.

A complete application package includes the original will, proof of death, a sworn statement of estate value supported by date-of-death valuations, beneficiary information for service, and the applicant's affidavits. Processing times vary widely by registry — from a few weeks in quiet courts to several months in backlogged urban registries — and deficiency notices for incomplete packages restart the queue. Executors should collect written probate requirements from each institution first, budget the tax or fee at filing, and calendar post-grant obligations such as estate information returns and the terminal tax filing before distribution planning begins.

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