Should minimizing probate be my primary concern in estate planning?
Q. Should minimizing probate be my primary concern in estate planning?
A: Probate is the process in which the Court confirms your Will for a 1.5% fee. Most financial institutions will require probate.
There is no probate if assets that go directly to individuals. Assets held jointly with right of survivorship (“JWRS”) or RRSPs, RRIFs and insurance products with individual beneficiary designations will not have probate. If your “Estate” is the designated beneficiary, probate will apply.
JWRS may result in unintended disputes if one party challenges legal ownership. JWRS assets may be exposed to marital or creditor claims or loss of the principal residence exemption.
Converting ownership will result in a fair market value disposition if there is a change in beneficial and legal ownership. This could result in unintended capital gains. A properly prepared bare trustee document may confirm no change in beneficial ownership.
For over 10 years, we have been utilizing dual Wills in Ontario. The secondary Will is prepared for assets not requiring probate such as shares of your private corporation and personal property.
Testamentary trust planning is not available with JWRS and
RRSPs/RRIFs/insurance products with individual beneficiaries.
You may avoid probate and take advantage of testamentary trust planning with RRSPs/RRIFs/insurance products if you properly designate the beneficiary as ‘a testamentary trust” created in your Will.
You should consult with your professional advisor on all related matters