The Will That Doesn’t Need Probate

By Vanessa DeDominicis

“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”.

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.

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 much loved 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 and so on and so forth. 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).

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 is always required when transferring assets into joint names.

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 on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills and Estates with Pushor Mitchell LLP in Kelowna, B.C.