By: David A. Altro         
B.A., LL. L., J. D., D. D. N., TEP
Owning U.S. Property the Canadian Way Blog Series
October 2, 2019                                                                                                                                                                                             

Pierre and his wife Manon put an offer on a $500,000 condominium in Sarasota, Florida. When they came to see me as their attorney, they asked whether or not to put the title in Manon’s name alone since Pierre has numerous business interests and potential creditor exposure back home in Montreal. (Lovely couple and smart to be asking.)

I told them no and laid out the reasons why Manon’s name should not be the only one on the title of their Florida condo. It starts with the need to avoid the probate procedure upon her death.

Upon Manon’s demise, the title to the property would get tied up in Florida probate for an extended amount of time – potentially more than a year. Not a pretty picture, believe me. I’ve seen it happen far too often.

Probate is the legal procedure before the county probate court where the property is located. Probate is expensive, time consuming and freezes the estate. It is a public procedure. The executors have to disclose to the court the information on all the worldwide assets of the deceased. Notices for potential creditors must be published twice and for a 90-day period in local newspapers in the county where the property is located.

Many Canadians are not comfortable with the obligation of disclosing all the assets of the deceased to a probate court where anyone can access the information.

Manon’s husband Pierre, the likely beneficiary in this case, would have to hire a Florida licensed attorney to probate the Florida property. Probate would cost him up to 3% of the property’s fair market value (FMV) as of the date of Manon’s death. Today, where the market has nowhere to go but up, this can be very costly as probate fees are based on the FMV of the property at date of death, not the purchase date. Yikes! See the table of probate fees in selected states to see how much probate could cost you.

Does the Canadian Will Get Around Probate?

OK, so those are the problems with probate. What about the Canadian wills drawn up by Pierre and Manon?

The good news: Generally speaking, if a last will and testament is valid where it was drawn up (in this case, Montreal), pursuant to the laws of Quebec, then it will be valid in Florida. The exception is the handwritten holographic will, which is recognized in Quebec but is not recognized in Florida. Additionally, the Quebec will may have to be translated from French to English in order to be reviewed by the probate judge and clerks.

The bad news: Even with a Canadian will, Pierre still must deal with Florida probate procedures and expenses. If the will has been probated in Canada, it still needs to be probated in Florida.

In Quebec, a will in notarial form prepared by a Quebec notary and title attorney is exempt from Quebec probate. Unfortunately, it will still be subject to Florida probate. Even a U.S. will is subject to probate upon the death of the owner of the property.

[1] Excerpt taken from “Owning U.S. Property the Canadian Way, Third Edition” by David A. Altro.

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Look out for part 2 of  the Owning U.S. Property the Canadian Way blog series titled “How to avoid Florida probate after passing away.

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