Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

Dying in Ontario: Getting the Will Probated
So when a person dies in Ontario, the banks holding their accounts or land registry offices or insurance companies won’t deal with just anyone claiming to be responsible for administering their estate.  They want to see that the Estate Trustee (i.e. the person actually appointed under a Will and confirmed by a Court to administer the deceased’s estate) is holding a certificate from the Court.  They won’t simply accept that a Will being put in their face is the actual Will or has not been contested in court. They don’t want to be held liable if something went wrong and they accidentally transferred property or money to the wrong party without the requisite authority.  That’s why they demand to see that the Will has been probated (i.e. verified by a Court).  Evidence of this is a “Certificate of Estate Trustee” issued by a Court.

That certificate will either be called a “Certificate of Appointment of Estate Trustee With a Will” (if the deceased had a Will) or a “Certificate of Appointment of Estate Trustee Without a Will” (if the deceased died intestate or without a Will).  Now, as part of the process of getting a Certificate, the estate will need to pay Estate Administration Taxes (formerly called Probate Taxes).  Here’s how it works…

Estate Administration Tax
Estate Administration Tax must be paid at the time the application for a certificate of appointment of estate trustee (with or without a Will) is filed.  So says rule 74.13 of the Rules of Civil Procedure and 2. 2(1) of the Estate Administration Tax Act, 1998.

The amount of estate administration tax payable is based on the value of the assets of the deceased’s estate at the time of his or her death.  It’s calculated as follows: $5 per $1,000 or part thereof, for the first $50,000, then $15 per $1,000 or part thereof by which the value exceeds $50,000 (s. 3, 2(6) of the Estate Administration Tax Act, 1998).  No tax is payable if the value of the estate is $1,000 or less.

So here’s an example: if the assets of the deceased’s estate at the time of death is $25,000, then the estate administration tax will be $5/$1,000 x 25,000 = $125.  If the assets were valued at $25,001, then the estate administration tax will be $5 more, or $130 because that $1 is part of the next $1000.

Worth mentioning is that no tax is payable where the application is for a certificate of appointment of SUCCEEDING estate trustee with or without a will or a certificate of appointment of estate trustee during litigation.  In these cases, the legislation prescribes a certain fee which is payable.

Can you get around paying Estate Administration Taxes?
Believe it or not, there are a few legitimate ways in which you can get around having your estate pay Estate Administration Taxes.  Clearly, you can dispose of your assets during your lifetime (either by selling or gifting them) and thereby reduce the asset value of your estate.  But this may still trigger tax consequences (depending on the type of asset you’re transferring, its fair market value on the date of the transfer, it’s original cost, and the person who is receiving it).  So what’s the solution?  Multiple Wills!

Multiple Wills
So how can having multiple Wills reduce your Estate Administration Tax?  Basically, the idea is that you can probate one Will dealing with certain assets but avoid having to probate another Will dealing with other kinds of assets.  The idea goes as follows: one Will deals with the assets for which Estate Administration Taxes will be required. This includes things like (but is not limited to) bank accounts, lands registered in the Land Titles System, shares or debt instruments of public companies, term deposits, GICs, and brokerage accounts, etc.  Banks and the Land Registry Office simply need to see that the Will has been probated and a Certificate of Estate Trustee issued before they allow anyone to do anything.  So Estate Administration Taxes will be paid as part of probating these assets.

But the other Will will deal with the assets for which Estate Administration taxes will not be required.  This includes things like (but is not limited to) assets for which a beneficiary is named or designated (e.g. life insurance, pension plans, RRSPs, RRIFs); assets held jointly which, upon your death, devolve to the surviving co-owner; real estate registered under the Registry System and not situate in Ontario; personal items; and shares and debt instruments of private corporations.

Now, in the next blog, I’ll discuss how the legality of using multiple Wills to avoid Estate Administration Taxes has been upheld by an Ontario court.

written by admin \\ tags: estate administration taxes, multiple wills, probate fees, probate required, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date. Laws change often and without notice. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can also contact me directly.

This is the eleventh of a series of MANY blog posts about Estate Administration in Ontario. Be sure to check them all out! Here, I’ll continue my discussion of what the registrar will do when reviewing an Application for a Certificate of Appointment of Estate Trustee with a Will. Specifically, I’ll discuss some of the questions the registrar will ask in deciding whether to issue a Certificate of Appointment of Estate Trustee with a Will.  By knowing these things in advance, you can avoid wasting more time and money in getting the Certificate of Appointment of Estate Trustee with a Will.

Was the deceased a minor at the date of the Will?
A Will is only valid if the person who made it was at least 18 years old at the time of making it (or 21 years old if the Will was made before September 1, 1971).  There are a few exceptions to this age requirements:

• The testator / testatrix was married before the Will was executed: section 8(1)(a) of the Succession Law Reform Act;
• Where the testator / testatrix is married after the Will was executed, the Will becomes valid on the date of the marriage if the Will states that it was made in contemplation of marriage to that spouse: section 8(1)(b) of the Succession Law Reform Act;
• Where the testator / testatrix is a member of the regular force of the Canadian military or is on active service under the National Defence Act: section 8(1)(c) of the Succession Law Reform Act; or
• Where the testator / testatrix is a sailor at sea or in the course of a voyage: section 8(1)(d) of the Succession Law Reform Act.

If the testator / testatrix was not 18 at the time of making the Will (or 21 in case the Will was dated earlier than September 1, 1971), the registrar will ask for a schedule to the Application that contains an explanation.  The application and schedule with explanation are then provided to a judge for a determination by endorsement.  If the judge says it’s OK, then the Application for a Certificate of Appointment of Estate Trustee is not in peril of being denied.

Did the deceased marry after the date of the Will?
Generally, when you get married, a previous Will which you made will be automatically REVOKED! There are a few exceptions.  First, if the Will contains a declaration that it was made in contemplation of the marriage, then it will not get revoked.  Second, the Will will not be revoked where the testator / testatrix’s spouse elects to take under the Will by an instrument in writing signed by the spouse and filed within 1 year after the testator / testatrix’s death in the office of the Estate Registrar for Ontario.  In this situation, the registrar will look for proof that the election was signed and filed by the spouse within the appropriate time period.  If the deceased married after the date of the Will, the registrar will ask for a schedule to the Application that contains an explanation.  The application and schedule with explanation are then provided to a judge for a determination by endorsement.  If the judge says it’s OK, then the Application for a Certificate of Appointment of Estate Trustee is not in peril of being denied.

Did the deceased’s marriage terminate after the date of the Will?
Here’s the situation: the testator / testatrix was married and had a Will.  Then that marriage was terminated by divorce or annulment.  What’s the result?  The Will is still in effect BUT gifts to the former spouse under the Will are AUTOMATICALLY revoked and the former spouse cannot act as estate trustee.  As usual, there is an exception to this rule: these automatic rules won’t kick in if the Will indicates that the termination of the marriage should NOT revoke the appointment of the former spouse as estate trustee or gifts to the former spouse.  Once again, if the deceased’s marriage was terminated by divorce or declared a nullity after the date of the Will, the registrar will ask for a schedule to the Application that contains an explanation.  The application and schedule with explanation are then provided to a judge for a determination by endorsement.  If the judge says it’s OK, then the Application for a Certificate of Appointment of Estate Trustee is not in peril of being denied.  If the judge says it’s OK, then the judge will indicate on the Will one of the following phrases beneath the testator / testatrix’s signature:

• “Devise or bequest to (name of former spouse) is revoked by reason of section 17 of the Succession Law Reform Act“.
• “Appointment of (name of former spouse) as estate trustee is revoked by reason of section 17 of the Succession Law Reform Act“.
• “Devise or bequest to (name of former spouse) and appointment of (name of former spouse) as estate trustee is revoked by reason of section 17 of the Succession Law Reform Act“.
• “The general power of appointment conferred on (name of former spouse) is revoked by reason of section 17 of the Succession Law Reform Act“.
• “The special power of appointment conferred on (name of former spouse) is revoked by reason of section 17 of the Succession Law Reform Act“.
• The registrar’s signature, printed name and the title “Registrar, Superior Court of Justice (location” are placed directly below the printed phrase(s).

Did a beneficiary under the Will or spouse of a beneficiary witness the testator sign or sign for the testator?
A gift under the Will to a person who witnessed the signing of the Will is void.  So too is a gift under the Will to a person who signed for the testator.  Same goes for a gift to the spouse of the witness or person who signed for the testator.  Those gifts are all VOID at first glance: section 12 of the Succession Law Reform Act.  Now, as usual, there are exceptions to this rule.  First, the beneficiary witness can release their right to the gift.  Second, the other beneficiaries may consent to the gift.  Third, the beneficiary can also bring a motion for relief under s. 12(3) of the Succession Law Reform Act and convince the Court that they did not exercise any improper or undue influence.  If the beneficiary doesn’t bring this motion, a person with a financial interest in the estate can bring a motion to require the witness to do so.  If the beneficiary witness fails to do so, he or she forfeits his or her right to the gift.  If the applicant indicates that a beneficiary or a spouse of a beneficiary has signed the Will as a witness, or for the testator, and has explained in a schedule to the application that he or she gave up the right to the gift under the Will and signed and filed a release, then the Registrar will refer the file to a judge for a determination.  If the other beneficiaries consented, and the consent has been filed and an explanation provided in a schedule, then the file will be referred to a judge for a determination.

If the spouse of the deceased is the applicant, has the spouse elected for an equalization share provided under section 5 of the Family Law Act?
Here’s the situation.  The spouse of the deceased is the applicant.  The spouse has elected to take under the Family Law Act instead of under the Will.  Under the Family Law Act, when married spouses get divorced or one of them dies, the other spouse is (absent an domestic contract that says otherwise) entitled to an EQUALIZATION OF THE NET FAMILY PROPERTY.  I’ve previously discussed this here.  Now, if that’s the case, the spouse CANNOT be the estate trustee [Reid v. Reid Martin (1999) 35 E.T.R. (2d) 267].  A spouse who fails to make an election is DEEMED to take what is given to them under the Will.  So, if the spouse of the deceased is an applicant AND has elected to receive their entitlement under the Family Law Act (hence they are not entitled to be the estate trustee), then an explanation in a schedule will need to be provided as to why the spouse is entitled to apply.  The matter will then be provided to the judge for a determination.

Are there alterations, erasures, interlineations or obliterations on the Will?
Finally, where the testator / testatrix makes changes to a Will BEFORE it is executed, the testator and the 2 witness MUST initial the change either in the margin or close to where the changes were made.  A change will include an alteration, erasure, interlineation, or obliteration.  The witnesses need not be the same ones that witness the execution of the Will.  There are exceptions to this rule: where the testator is a member of the military on active service or where the Will is a holograph Will (i.e. written entirely in the testator’s handwriting), then the requirement for witnesses doesn’t apply to changes to the Will.  In these situations, ONLY the testator MUST place his or her signature in the margin or close to where the changes were made [section 5 and 6 of the Succession Law Reform Act].  A codicil (which is a separate document that makes changes to a Will) which has alterations must follow these rules as well.  If these formalities are not complied with, then the testator’s changes will be void.  If a provision of the Will is unclear because of the void changes, then that part of the Will that has been changes will be of no effect.  If there were changes, the Registrar will look to see that they have been properly executed (as discussed above), check to see that Affidavits of Execution of Will is filed with the Will as an exhibit to the affidavit, and send it to the judge for a determination.  If the judge directs that everything’s OK, then the Certificate of Appointment of Estate Trustee will not be in jeopardy of being rejected.

PHEW!  That was a lot of stuff that the Registrar will review.  Just make sure to think about these pitfalls ahead of time and consult a lawyer when you’re looking to probate a Will (now called applying for a Certificate of Estate Trustee With a Will).

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Lawyers. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: application of certificate of appointment, certificate of appointment of estate trustee, estate trustee, letters probate, probate, probate lawyer, Wills and Estates, wills and estates lawyer, wills lawyer

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date. Laws change often and without notice. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can also contact me directly.

This is the tenth of a series of MANY blog posts about Estate Administration in Ontario. Be sure to check them all out! Here, I’ll continue my discussion of what the registrar will do when reviewing an Application for a Certificate of Appointment of Estate Trustee with a Will.  Specifically, I’ll discuss some things that the registrar will look for in the documentation you provide.  By knowing these things in advance, you can avoid wasting more time and money in getting the Certificate of Appointment of Estate Trustee with a Will.

Have the Beneficiaries received notice?
As previously discussed, you’ll need to provide the registrar with an Affidavit of Service that shows that you have served Notice of an Application of Certificate of Appointment of Estate Trustee with a Will.  This basically means that you have served (by regular letter mail) the notice on those beneficiaries who are entitled to receive it.  Now, a beneficiary named in the Will is NOT entitled to notice if they are dead, received the gift before the testator / testatrix died, or the gift no longer exists. Finally, if a beneficiary named in the Will or is part of a class of people entitled to share in a gift given under a Will cannot be located, the name of the beneficiary (or potential beneficiary) must be provided to the Registrar, together with an Affidavit that explains attempts made and reasons why notice has not been served.

Applicant is Not Named in the Will
If the Applicant (i.e. the person wishing to be the Estate Trustee) is not named in the Will, then a bond is generally required.  I’ve previously discussed bonds, sureties, and dispensing with bonds.  Dispensing with the requirement to post a bond will require, for example, an affidavit of the Applicant in support of that request, together with consents from beneficiaries and a draft order.

Applicant is Not Resident in Canada or a Commonwealth Country
Again, if the Applicant is not a resident in Canada or a Commonwealth country, then a bond is generally required.  I’ve previously discussed bonds, sureties, and dispensing with bonds.  Dispensing with the requirement to post a bond will require, for example, an affidavit of the Applicant in support of that request, together with consents from beneficiaries and a draft order.

Renunciations Signed?
Renunciations are required to be signed by estate trustees who are named in the Will and entitled to apply.  The registrar will check to see if the renunciation has been signed by each estate trustee named in the will and who has not jointed in the application.

In the next blog, I’ll discuss some of the questions which the Registrar will review in deciding whether to issue a Certificate of Appointment of Estate Trustee with a Will.

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Lawyers. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: application of certificate of appointment, certificate of appointment of estate trustee, estate trustee, probate, probate lawyer, Wills and Estates, wills and estates lawyer, wills lawyer

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date.  Laws change often and without notice.  If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

This is the sixth of a series of MANY blog posts about Wills in Ontario. Be sure to check them all out! Here, I’ll be discussing what happens if there is a mistake in the Will or if you are a dependant of the Testator / Testatrix (i.e. the person who made the Will) but are not adequately provided for in the Will.

What if there is a mistake in the Will?
A Will is only valid if the Testator / Testatrix knew and approved of its content.  If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases.  In Barylak v. Figol, 9 E.T.R. (2d) 305, for example, a residuary clause had been inserted by mistake.  That clause gave the residue of the deceased’s estate to a fund to create a scholarship for needy students of Ukrainian origin. The Testator never gave his solicitor instructions to include this clause. There was no evidence that the Will was ever sent to the Testator prior to its execution for review by him.  Even if it had been, there was no evidence as to whether the Testator’s command of written English was such that he would have fully understood it. Also, there was no evidence that a true copy of the executed Will was left with the Testator or that a copy was sent to him. Overall, the Ontario Court of Justice (General Division) held that the Testator knew nothing about the residuary clause and that it did not reflect his expression. Accordingly, the Court deleted the clause from his Will based on the doctrine of mistake.

What if I am a Dependant?
If you are a dependant in Ontario and have not been adequately provided for in a Will, you might have some recourse.  Section 58(1) of the Succession Law Reform Act allows a deceased’s dependants to apply to the court for support where the deceased (either through a Will or absent one) has not made adequate provision for their proper support.  A “dependant” is defined under section 57 of that Act to include your: married spouse, spouse as defined in the Family Law Act, former spouse, parent, grandparent, child, grandchild, brother, and sister. A dependant may have to prove that they are a dependant and entitled to financial support under section 58(1) in court. If the court finds that the person is a dependant and has shown a need for financial support, then the court may order a certain amount of money be paid to them out of the estate.  If you think that you may be entitled to more from an estate than the amount provided for in a Will, or if you need to determine the rights of others when preparing your Will, consult with a lawyer (by making a post on Dynamic Lawyers).

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Lawyers. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: estate planning, last will, last will and testament, last will and testament canada, last will and testament template, legal forms, making a will, sample wills, wills, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  This blog may not be up to date.  Laws change quickly and without notice.  If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

This is the fifth of a series of MANY blog posts about Wills in Ontario. Be sure to check them all out! Here, I’ll be discussing what the basic structure of a simple Will is and how it can be amended, revoked, or revived.

What is the basic structure of a Will?
Simple Wills follow a common structure:

1. Identify the person who is making the Will.
2. Revoke previous Wills.
3. Appoint an Estate Trustee and a Substitute Estate Trustee (i.e. someone who is legally competent and will administer your estate as per your final wishes).
4. List your wishes concerning your taxes, funeral, and personal effects.
5. List and divide your personal and real property if you wish.
6. Distribute the residue of your estate (i.e. left over after all liabilities have been paid and all other gifts distributed).
7. Outline the powers and limits of your Estate Trustee (e.g. manage investment, sell / dispose / retain assets, employ agents, deal with real property, make loans to beneficiaries, settle claims, make elections under the Income Tax Act, etc).
8. Appoint a Custodian for your minor and disabled children and Guardian of their property.
9. Include dispute resolution provisions (if you wish)
10. Execution: sign and date the Will and have it witnessed by appropriate parties.

How can you amend a Will?
If you want to amend your will, you can do so by creating a Codicil (i.e. a legal document).  You can’t simply cross off a part of the Will or insert a new section in handwriting on top of the Will.  You must either create a new Will or (if the change is relatively minor) create a Codicil.  A Codicil is a written document that refers to the Will and the parts that are being changed (removed, added, etc.).  A Codicil must be signed, dated, and witnessed by two parties in the same way as a Will is made: section 18 of the Succession Law Reform Act.

Codicils that amend previous Codicils should also state that fact (i.e. that a particular Codicil is being revoked).  If there are many Codicils, it would probably make sense to re-write the entire Will (for simplicity’s sake).  You can purchase a Codicil on Dynamic Lawyers.

How can a Will be revoked?
A Will can only be revoked only by:

• Marriage, unless there is a declaration in the Will that it is made in contemplation of a marriage to a particular person: sections 15(a) and 16(a) of the Succession Law Reform Act
• Making and properly executing another Will: section 15(b) of the Succession Law Reform Act.
• A written declaration with an intention to revoke which follows the rules of making a Will: s.15(c).
• The Will being destroyed (e.g. burned, torn, etc.) by the Testator / Testatrix or some person in his or her presence and by his or her direction with the intention of revoking the Will: section 15(d).  There must be both a physical act and an intention to destroy (so a symbolic destruction will not suffice!).

How can a Will be revived?
A Will that is revoked can be revived only under section 19 of the Succession Law Reform Act:

• By a Will being made;
• By a Codicil being made which shows an intention to give effect to the Will or the part of the Will that was revoked; or
• By the re-execution of a previously revoked Will with the required formalities.

Unless the contrary can be shown, there is a presumption that, when a Will is partially revoked and then afterward wholly revoked and then revived, the revival does not extend to the part that was partly revoked (i.e. before the whole revocation).  If you didn’t understand that last part, just re-read it

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Lawyers. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: estate planning, last will, last will and testament, last will and testament canada, last will and testament template, legal forms, making a will, sample wills, wills, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

This is the fourth of a series of MANY blog posts about Wills in Ontario. Be sure to check them all out! Here, I’ll be discussing what you should think about when preparing your Will.

How do I prepare to have my Will drafted?
To prepare to have your Will drafted, you should gather some important and relevant personal and financial information.  This information, which can be provided in the form of a checklist, will help the drafter tailor your Will to meet your needs.  Having this information conveniently available alongside the Will can also benefit your trustee and beneficiaries, who won’t have to be looking for hidden or hard to find assets and liabilities after you die.  The following basic information should be included in the checklist:

• Personal Information: name, address, date of birth, marital status (past and present), residency, previous Will, marriage contract, etc.;

• Family and Dependent Information: names, addresses, dates of birth of spouse(s), children, and dependents, etc.;

• Professional Advisors: names and addresses of lawyer, accountant, investment advisor, life insurance agent, etc.;

• Income Information: amount of annual income from all sources (e.g. employment, business, rent, royalties, etc.);

• Assets: bank accounts, safety deposit boxes, real estate, life insurance, annuities, RRSPs, RRIFs, pensions, investments, business interests, debts owing from third parties, cars, boats,             machinery/tools/equipment, household goods and furniture, etc.; and

• Liabilities: mortgages, loans, credit card balances, etc.

Once these details have been gathered, the next step is for you to outline the instructions for your Will. To start, the following questions will need to be answered with respect to disposing of personal effects and the residue of your estate:

• Who do you wish to be your Estate Trustee?
• How do you want your personal property and real property to be gifted?
• How do you want the residue of the estate to be dealt with?
• Would you like to create a spousal trust, whereby your surviving spouse can live off the income generated by the residue of your estate until he or she passes away, in which case, the residue is distributed among the beneficiaries (e.g. the children?)?
• Who do you wish to be the Custodian of your minor children and Guardian of their property?
• What kinds of powers do you want your estate trustee to have with respect to you personal effects (e.g. power to sell, power to invest, power to distribute proceeds, power to loan funds to beneficiaries or others, power to take reasonable compensation from the residue of the estate, etc.) and assets?
• Do you want to have special clauses dealing with minors (e.g. property relating to minors, a trust relating to minors, guardians of minor’s property, etc.)?
• What kind of funeral do you want to have?
• Do you wish to donate your organs?
• How are disputes to be handled (e.g. arbitration, mediation, court, etc.)?

These and other questions will need to be answered before your Will can be properly drafted.

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Lawyers. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: estate planning, last will, last will and testament, last will and testament canada, last will and testament template, legal forms, making a will, sample wills, wills, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

This is the third of a series of MANY blog posts about Wills in Ontario. Be sure to check them all out! Here, I’ll be discussing what the benefits are of having a Will and what happens if you die without one.

Why should you have a Will?
With a Will, you can:

• Decide who will be the beneficiaries of your estate (i.e. the pool of assets which will be distributed after certain expenditures are paid);
• Give personal items to specific individuals;
• Include persons who are not related to you by blood to inherit a part or all of your estate;
• Divide the residue of your estate according to specifically identified trusts;
• Select an Estate Trustee (i.e. a person who will administer your estate and pay out the specific trusts described in your Will);
• Select a Custodian for your minor children (if you have any) and Guardian of their property;
• Reduce the cost of administering your estate (e.g. by avoiding fighting and estate litigation); and
• Reduce income taxes (especially if you die and leave a spouse behind).

What happens if you die without a Will?
In Ontario, if you die WITHOUT a Will, then someone will need to apply to the relevant court to be appointed the Estate Trustee.  This application is made in the court office for the area (e.g. county, district, region, or metropolitan municipality) in which the deceased resided at the date of death. In Toronto, for example, the appropriate court is the Estates Court office located at 393 University Avenue, 10th floor, 416-326-4230 (otherwise, you make an application to the Ontario Superior Court of Justice).

Applications for Certificates of Appointment of Estate Trustee are processed by Ministry of the Attorney General court staff.   They perform the duties of an estate registrar in the Civil Office of the Superior Court of Justice. These duties are prescribed by law. Staff must review each application to confirm that the application and all accompanying documents are complete and comply with the Ontario Rules of Civil Procedure (the rules of court) and other applicable legislation.

Section 74.05 of those Rules require that an Application for a Certificate of Appointment of Estate Trustee without a Will (Form 74.14 or 74.15) be accompanied by:

1. An affidavit (Form 74.16) attesting that notice of the application (Form 74.17) has been served on all persons entitled to share in the distribution of the estate (including special ways to serve minors under 18 years old and mentally incapable persons).
2. A renunciation (Form 74.18) from every person who is entitled in priority to be named as estate trustee and who has not joined in the application.
3. A consent to the applicant’s appointment (Form 74.19) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
4. The security required by the Estates Act; and
5. Any other additional material which the court may direct (e.g. affidavit dispensing with bond, Draft Order Dispensing with bond, Draft Certificate, affidavits concerning value of estate, etc.).

If court staff have concerns about the application or accompanying materials, the application must be referred to a judge for direction. The judge may require further materials to be filed or steps taken by the personal representative in relation to the application.  The Ministry strives to process certificates of appointment of estate trustee with or without a will within 15 days after the application and accompanying materials are complete and judicial direction, if required, has been obtained.  If a Certificate of Appointment of Estate Trustee Without a Will is issued, it will be in Form 74.20.  Be sure to consult a lawyer if you need one!

How will your property be divided if you don’t have a Will?
If someone dies without a Will in Ontario, their property will be divided according to the rules set out in the Succession Law Reform Act.  There is a standard procedure which divides property according to family relationships.  Here are some of those rules:

• If a person dies without a Will and is survived by a spouse without children, then the spouse is entitled to the property absolutely: section 44.
• Worth mentioning is that a spouse is generally entitled to a preferential share under the Regulations made under that Act up to the first $200,000 of the estate before it is divided among any remaining heirs: sections 45 and 46.  This basically means that if the estate’s net worth is $200,000, then the spouse will be entitled to all of it!
• If a person dies without a will and a spouse and one child survive, then the spouse will be entitled to their preferential share and an additional 1/2 of the residue of the estate: section 46(1).
• If a person dies without a will and a spouse and children survive, then the spouse will be entitled to their preferential share and an additional 1/3 of the residue of the estate: section 46(2).
• If a person dies without a will and without any spouse or children surviving, then their living parents will be entitled to the property either equally (or one of them will get it absolutely if only one is alive): section 47(3).
• If a person dies without a will, without any spouse or children, and without any parents, then their property will be distributed equally among any living brothers and sisters (or their children): section 47(4).
• If a person dies without a will, without any spouse or children, without any parents, and without any brothers or sisters, then their living nephews and nieces inherit an equal portion of the residue of the estate: section 47(5).
• Finally, if a person dies and there is no surviving spouse, children, parent, brother, sister, nephew or niece, then the property “shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation”.  If a person has no such living next of kin, then generally the estate goes to the government.

So be sure to have your Will properly drafted by a lawyer if you want to have control over who your beneficiaries are when you pass away!

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Lawyers. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: estate planning, last will, last will and testament, last will and testament canada, last will and testament template, legal forms, making a will, sample wills, wills, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

This is the second of a series of MANY blog posts about Wills in Ontario. Be sure to check them all out!  Here, I’ll be discussing whether a lawyer is needed to have a Will.

Is a Lawyer Needed?
While a lawyer is not legally required for you to have a Will drafted, reviewed, or executed, it is nevertheless in your best interests to do so.  Only a few things are needed in order for a Will to be valid and enforceable.  But if you don’t do these basic things properly, the Will may be contested through litigation.

In addition to ensuring that the legal requirements of drafting a Will are met and that the specific wishes of the Testator / Testatrix are addressed, a lawyer will typically deal with a number of other issues that could jeopardize the validity of a Will.

First, a lawyer will inquire into the mental state of the Testator / Testatrix.  A lack of capacity to enter into the Will may be grounds to invalidate it.  In Banks v. Goodfellow, 1870 WL 11622 – the English Court of Queen’s Bench famously wrote:

“It is essential to the exercise of (the power of testation) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

If there is a doubt as to the Testator / Testatrix’s mental capacity to enter into the Will (e.g. due to age or physical, mental or emotional illness, etc.), the lawyer may call an appropriately qualified medical practitioner to be present at the time instructions are given.  Those instructions may also be video recorded.

Second, a lawyer will also try to make sure that the Testator / Testatrix is not entering the Will as a result of some duress or improper or undue influence from an external force.  The Testator / Testatrix must enter the Will freely and voluntarily or else it may be subsequently contested.  A lawyer will typically exclude interested parties from being present at the time the Testator / Testatrix executes the Will.

Third, a lawyer will be able to discuss with you income tax, probate, and statutory claim considerations. When you die, you are automatically deemed to have disposed of (immediately before death) all your assets for fair market value: section 70(5)(a) of the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.).  As such, any resulting taxable capital gains have to be included in your income in that year.  These capital gains, however, can be deferred through the use of a spousal rollover, which a lawyer can help structure.  If you own shares of a qualified small business corporation (which a lawyer can also advise you on), you may also be entitled to a lifetime capital gains deduction (which is presently $375,000). With respect to minimizing probate fees, there are a number of legal possibilities which can be canvassed with your lawyer – such as transferring assets into joint ownership, designating beneficiaries of RRSP’s, RRIF’s and insurance policies, establishing an inter vivos trust, and executing multiple wills.  Finally, your estate may be liable to pay your dependents (pursuant to section 58 of the Succession Law Reform Act) and spouse (pursuant to sections 5 and 6 of the Family Law Act, R.S.O. 1990, c. F.3) more than what they would otherwise be entitled to under your Will.  A lawyer can help you address all of these things.  In the case of your spouse, for example, a lawyer can draft a marriage contract that would preclude your spouse’s ability to entitlements under the Family Law Act.

Finally worth mentioning is that, a lawyer is NECESSARY to prepare and witness International Wills (discussed in a future blog post).  For these reasons, it is generally advisable to contact a lawyer when you need to prepare your Will.

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children.  This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!).  Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Lawyers. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: estate planning, last will, last will and testament, last will and testament canada, last will and testament template, legal forms, making a will, sample wills, wills, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

This is the first of a series of MANY blogs about Wills in Ontario. Here, I’ll be discussing what a Will is and what are some of the legal requirements for a Will to be valid.

Introduction
You’ve heard it many times.  You need a Will!  But what is a Will and why do you need one?  What legal surprises (and headaches) await your loved ones if you don’t have one?  Is a lawyer required to draft or witness a Will?  What is a “Living Will?   Is that a Will too?   What about International Wills?  What are some of the standard clauses that you’ll find in a Will?  These and other questions are common, but not always answered.  Sometimes, a lack or absence of communication can result in costly mistakes and even litigation.  These blog posts will hopefully help shed some valuable insight into these and other questions that may come to mind when you’re getting serious about dealing with Wills in Ontario.  Remember: if you’re looking for an Ontario lawyer to help, you can make a post on Dynamic Lawyers.  We have Toronto, Ottawa, Hamilton, Brampton and other Ontario lawyers registered.

What is a Will?
A Will (also referred to as a “Last Will and Testament”) is a legal document that basically provides instructions as to how your remaining assets and liabilities are to be dealt with. It also provides for instructions as to who will be the “Estate Trustee” responsible for administering your final wishes and identifying who your beneficiaries will be. Finally, a Will can allow you to appoint a “Custodian” for your minor children or dependents and “Guardian” of their property.

According to section 1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, a Will also includes a “Codicil”, which is a document that cancels certain parts of your Will or adds new parts to it and which must be read together with your Will as one document. A person who makes and signs a valid Will is referred to as a “Testator” (for a man) or “Testatrix” (for a woman).

When you die in Ontario, your assets are pooled together into something called an “Estate”. An Estate Trustee is appointed in the Will (and a substitute is usually appointed in case the primary estate trustee is unwilling or unable to perform his or her duties) and must:

• administer the Will by paying out liabilities (e.g. taxes owed, funeral expenses, creditors, etc.);
• manage remaining assets (e.g. selling them, gifting them, investing them, etc.); and
• distribute the residue of the estate (i.e. the remaining funds after everything else is taken care of) to the beneficiaries designated under the Will.

What are the legal requirements for a Will to be valid?
There are only a few requirements for a Will to be valid and enforceable.  But if you don’t do these basic things properly, the Will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years, etc.

First, in Ontario, for a Will to be valid, it must be in writing.  So says the Succession Law Reform Act.

Second, a Will must be made by a legally competent person (i.e. the Testator / Testatrix must be 18 years old or older and mentally capable of making a Will).   This is often a litigious issue: some will claim that the person making the Will was not sufficiently competent to make the Will as they did not understand the purpose and effects of making the Will.  Worth mentioning is that a person under 18 years old CAN make a Will if he or she is married or if he or she is in the Canadian Armed Forces.

Third, the Testator / Testatrix must sign the Will before two witnesses who are both present during signing.  The witnesses must also acknowledge that this was done – typically through an affidavit attached to the Will.  It is also a good idea to have these affidavits in case the Will needs to be “probated” through the courts (i.e. legally processed to establish the validity of a Will before a judicial authority): if probate is necessary, and many years have passed since the Will was signed and witnessed, the witnesses will need to be located for the purposes of giving affidavits.  To avoid wasting time and money locating witnesses, it is best to simply have them sign affidavits at the same time they witness and sign the Will.  It is not necessary for witnesses to see or read any part of the document.  The Testator / Testatrix’s signature must be at the end of the document, but can follow a blank section on the page after the concluding words of the Will.  Neither of the witnesses can be beneficiaries or their spouses, or else transfers of real or personal property to them are voided: section 12 of the Succession Law Reform Act.  Also, the Estate Trustee is not a competent witness to prove the execution of its will or its validity: section 14 of the Succession Law Reform Act.

It is a good practice for all parties to initial in the bottom right hand corner of every page leading up to the signing page.  While there may be other requirements for a Will to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the Will as litigation-proof as possible.

Worth mentioning is that “Holographic Wills” are acceptable and do not require the presence or attestation or signature of a witness to be valid: section 6 of the Succession Law Reform Act.  Holographic Wills are wholly written by the testator in his or her handwriting and signed and dated.  People are cautioned against writing their own Will in this manner as it may lead to the Will being challenged.

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children.  This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!).  Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Lawyers. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: estate planning, last will, last will and testament, last will and testament canada, last will and testament template, legal forms, making a will, sample wills, wills, Wills and Estates

Here’s Legal Form + Video Guide #17:

Last Will and Testament (Ontario) – Outright Distribution to Your Spouse

Need an Ontario Legal Form but can’t afford a lawyer? Try our LEGAL FORMS + VIDEO GUIDES! This Youtube video is just a sneak peak of the video guide that comes with an Ontario Last Will and Testament where the residue of your estate (the leftover assets after your debts and taxes have been paid off) go to your surviving spouse. If your spouse does not survive you, then the residue will go to your surviving issue (e.g. children, grand-children, etc.). This Last Will and Testament also comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: canada wills, do it yourself wills, last will and testament, legal wills, online wills, will, wills, Wills and Estates