Estate law in Canada, including wills and probate fees, falls under provincial and territorial jurisdiction, meaning major differences can occur between provinces when it comes to the planning or administration of an estate.
To avoid unintended consequences, such as a challenge to a will or high probate fees, experts say it’s important to keep a will up to date in the event of an interprovincial move.
With the great intergenerational wealth transfer that is expected to take place over the next two decades, the importance of keeping an estate plan updated is especially relevant. According to Chartered Professional Accountants Canada association, about $1-trillion of wealth is expected to pass from the baby boomer generation to their Gen X and millennial heirs between late 2023 and 2026.
An estate plan affects everyone, said Eleanor Carlson, partner at Carbert Waite LLP in Calgary, which is why it’s important to ensure it’s kept in accordance with the laws of the jurisdiction in which you live.
One of the biggest differences between provinces is who, among a will-maker’s family, can bring a claim against an estate, Ms. Carlson said.
“Every province has its own set of rules as to who qualifies as a family member who can challenge your estate if you did not provide adequately for them under your will,” she said.
For example, in Alberta, an estate can be challenged by an adult child of the deceased only if they’re unable to earn a livelihood owing to a mental or physical disability. But in B.C., any adult child of the deceased can bring forward a claim on the basis that their parent didn’t provide adequately for them in their will.
Jessica Feldman Chittley, a partner at Bales Beall LLP in Toronto, said the other major difference between provinces is how they levy probate fees, or the estate administration tax paid to the provincial government. In Ontario and B.C., probate fees are a percentage of the estate’s value. But in Alberta, probate fees max out at a flat fee of $525 and, in Manitoba, there aren’t any probate fees.
Often, in provinces with high probate fees such as Ontario, people will use different techniques to try to reduce the impact of the fees, Ms. Feldman Chittley said. Creating multiple wills is a common strategy, with one will to capture all of the assets that require a grant of probate and the other capturing all the assets that don’t, which vary depending on the province or territory.
But not all provinces recognize multiple wills, Ms. Feldman Chittley added. “You have to think about how a local court will look at these multiple wills, whether or not they will work in another jurisdiction.”
Other provincial and territorial differences include the effect of marriage, divorce or separation on an estate plan, Ms. Carlson said. In some provinces, getting married can revoke or cancel an existing will, but in others, it has no effect on the will itself.
The age at which someone can write a will also varies across Canada, Ms. Carlson said, as does a lot of the terminology used in estate planning. In Alberta, an executor is called a “personal representative,” whereas in Ontario, they’re called an “estate trustee,” she added.
An estate plan should always be reviewed on a regular basis, Ms. Carlson said, but especially when someone moves jurisdictions within, or beyond, Canada.
While a will made in a different province isn’t necessarily going to be invalid elsewhere in Canada, she said the variations in estate planning strategies across the country mean it might not be as effective or optimized to reduce probate fees.
“We’re not too worried about the will not being valid, we’re worried about you not having the suite of other things in your toolkit to maximize the benefit for your beneficiaries,” she said.
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