Wills and Estates
A well-planned and administered estate is essential – not only to protect your business, but also the people you love. Estofa Law provides peace of mind to clients, ensuring that intergenerational transfers of wealth occur in a tax-efficient manner and accordance with their clients’ desires. Our lawyers have experience in dealing with all types of estate planning and administration, from simple wills to complex blended family situations and transfers of business interests.
What is a Will
A will is a legal document that sets out what will happen to your money and property after you die. It is your chance to communicate your final wishes to your family and loved ones. Your will allows you to make arrangements so that it will be easier for your loved ones to wrap up your affairs.
What Usually goes in a Will
Wills communicate your wishes about how your property and money will be distributed when you die. Wills commonly include the following:
When does a WIll take Affect
Wills take effect the moment you die. Your executor does not have the authority to do any of their duties under the will before you have passed away. Your beneficiaries do not have the right to access their inheritance before you have died.
What DON’T Wills do
Wills do not give anyone access to your money or property while you are still living. The will does not give your executor the right to take over any decisionmaking for you while you are alive, even if you become incapable. If you want to name someone to manage your money or make personal care decisions for you while you are still alive, you will need to complete Powers of Attorney. Wills also do not typically include health or personal care instructions. In Ontario, the term ‘Living Will’ is not used, but you can include health care instructions in a Power of Attorney for Personal Care. Since your Last Will and Testament takes effect at your death, it does not deal with health care instructions.
What Does a Will Need in order to be Valid
In Ontario, wills need to be in writing in order to be valid. Talking to your loved ones about what should happen to your money and property is sometimes useful, but your wishes are not legally binding unless they are properly written down. Wills must be signed at the end of the document. Generally, unless your will is completely in your own handwriting, it needs to be witnessed by two people. A will that is completely in your own handwriting is called a holograph will. Holograph wills do not need to be witnessed, but they do need to be signed at the end.
Who can make a Will
If a person does not have testamentary capacity when they make their will, the will is not valid. When lawyers prepare a will for a client, they need to make sure the client has testamentary capacity. They need to ask questions and make thorough notes. If the lawyer decides that their client does not have testamentary capacity, they will not be able to help that person with their will.
Who is an Executor
An executor, also called an estate trustee, is the person who will do all the work to carry out your wishes after you pass away. They will follow the instructions in your last will and testament.
Who can be my Executor
Your executor can be just about anyone you choose, with a few exceptions. They do not need to be a family member. They must not be bankrupt or incarcerated. They are not required to live in Ontario, but it is easier if the do. The executor must be at least 18 years old at the time you pass away.
Should I have more than one executor
It is always a good idea to have a back-up plan in case your executor cannot act for you. Your executor could move away, die before you or become ill. You can have as many substitute executors as you would like. You can also choose to name more than one person to act as your executor at the same time. There are some important things to consider first. For example:
Should I include funeral instructions in my Will
You can choose to include funeral instructions in your will, but they are not legally binding. That means that your executor will make the final decision. If you have particular wishes, you should make sure your executor knows about them. Your executor may or may not see your will before your funeral arrangements have to be made.
If you are involved with a religious organization, you can talk to the leader about your wishes while you are living. You can also contact a funeral home or crematorium and make arrangements in advance. You can choose whether or not to pre-pay for your funeral. Make sure to let your executor know if you have made arrangements with a religious organization or funeral home.
What if I do not make a Will
If you die without a will, the court can appoint someone to administer your estate or act as your executor. Family members can apply to be your estate trustee, and so can creditors. The Succession Law Reform Act deals with what happens to a person’s estate if they die without a will in Ontario. How the estate will be divided will depend on the person’s family circumstances. For example, if you are married with no children, your husband or wife will generally get everything (even if you have separated and are no longer living together!). This applies whether you are married to a person of the same sex or the opposite sex. It does not apply to common-law partnerships, which are treated very differently.
When is a Will revoked or Cancelled
Can I Change my Will
You can decide to change your will in the future, with limited exceptions. You must continue to have testamentary capacity. If you lose your capacity because of illness or disability and you do not regain it, you will no longer be able to make a new will or change your old one. The last version of the will that is valid will be used.
Do I need to register my Will
In Ontario, you are not required to register or publish your will. You should make sure that the person who is going to be your executor knows where to find your original will (and not simply a photocopy). If you do not live with your executor, make sure that your family, friends or caregivers know how to reach them.
What if I lose my WIll
If you lose your original will (the version that is not a photocopy), then your executor will likely have a difficult task ahead of them. The court will assume that you destroyed the will in order to revoke it. The executor or your beneficiaries will have to try to prove that you did not destroy it or revoke it. Also, they will have to try to convince the court of what was actually in the will.
Always store your will in a safe place where your Executor can get to it. They must be able to find the original will. Be aware that landlords may want to see the original will before they let the executor into your apartment. A bank would also want to see the original will before allowing your executor to go into your safety deposit box.
Estofa Law provides peace of mind to clients. Our lawyers have experience in dealing with all types of Wills and estates, from simple wills to complex blended family situations.