Kenneth C. Pope is one of the most experienced practitioners in Ontario providing services to families with a family member with a disability, and has focused his practice to help them put in place Henson trusts, which ensure that the child with a disability will not lose provincial disability benefits as a result of their inheritance.
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When one of my clients does finally die, and not that many of them died, I think that having their wills in place tends to contribute to longevity. We then meet with the executor of the child who will be the executor and we discuss the estate settlement process and probate applications.
So the first question of course is well what is probate? Now what happens when someone passes on, is no doubt there's a will one hopes and an executor that's named in the will, but wherever the money is, banks, investment houses, they don't rely upon a copy of a will because they don't, they need to know whether this is the last will and whether you are the executive. So this court application to have a certificate of appointment issued to appoint the executive takes six to eight weeks for example. Once this is issued then you can take a copy of that to the bank and they will then give you the money so you can set up the estate account and you can proceed to liquidate the estate, sell the house and bring in the estate.
An executor can charge executives fees and the overall fee is generally, if charged, five percent of the total estate based upon the probatable value. And a probatable value does not include life insurance, RRSPs, SEC funds, TFSAs, those kinds of designated or joint account assets; and the estate administration tax or the probate fee is in fact not that burdensome, it's one point five percent of the total estate, so on a half a million it’s seventy five hundred dollars.
So if you have people that say oh well you have to do this or that to avoid probate fees you can see that in fact it's not, it's not the moon in the stars. Now once the certificate is issued and you're calling in the estate, you'll then have other tasks settling the estate. You can certainly engage lawyers and accountants and others to provide support services, there are fees involved of course. And to the extent that those services are provided by others, those executors’ duties if provided by others, you can't charge for that you then use part of the proceeds to pay them. Their fees may exceed the probate, the executors’ fees, but that's a matter of the complexity of the estate. Typically executors don't need a great deal of support.
That process takes let's say a year to deal with terminal tax returns and those sorts of things. It's a thankless task especially if there are no fees involved, but it's something that many of us will have to do as time goes by.