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:
- The name of an executor or estate trustee who will be responsible for carrying out your wishes.
- The name of a guardian to care for any minor children. · Specific gifts of money, personal property or land.
- Directions about who should get the rest (or remainder) of your money and property.
- Instructions that allow money to be held in trust for certain beneficiaries (for example, children or people with disabilities). Wills can also include funeral instructions, gifts to charitable organizations, arrangements for pets, and more.
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.
Witnessess:
- There are certain requirements for witnesses to wills:
- Witnesses must be at least 18 years old;
- They cannot be a beneficiary (someone who will inherit under the will) or the spouse of a beneficiary, and;
- They must be competent at the time they witness the will.
- If you are working with a lawyer, the lawyer will usually arrange for the will to be properly witnessed. Often a lawyer will ask one or both witnesses to sign an Affidavit of Execution after they witness your will. The Affidavit of Execution is a sworn statement from a witness that they saw you sign your will. The Affidavit can be helpful in case the witness cannot be located after you have passed away.
Who can make a Will
- In Ontario, anyone can make a will as long as they are at least 18 years old and have testamentary capacity. Testamentary capacity means that the person making the will:
- Understands the nature and effect of the will
- Knows what they own
- Understands what they will be giving away
- Remembers the people they might be expected to benefit under their will; and
- Understands the possible claims that could be made by people they are leaving out of the 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.
- Some of the duties of an executor include:
- Making funeral arrangements
- Arranging for your home to be cleared out
- Making sure your debts and any outstanding bills are paid (out of your money and assets)
- Making sure the right people get their inheritance
- Closing your accounts
- Filing your final tax return
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.
- Some questions to ask yourself when you’re thinking about who to choose may include:
- Is the person likely to be willing and able to be your executor when you die?
- Is the person trustworthy and honest?
- Is the person good with money?
- Are they organized and good at keeping records?
- Can they do tasks involving reading and writing, or get help from someone else with these tasks?
- Can they handle stress?
- Do they live close by?
- Will they work well with the people who are going to benefit under your will?
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:
- Will the people you want to name be able to work together? Do they get along?
- Do the people you want to name live close together? If not, it may become difficult for them both to sign off on documents and make arrangements to do jobs together.
- In general, carrying out your wishes becomes more complicated when you name more than one person to act as your executor at the same time. It is often easier to name one person to act alone, with one or more substitutes.
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
- A will is revoked, or cancelled, when the person who made the will:
- Gets married
- Destroys it with the intention of revoking it
- Makes a new will
- Revokes it in writing (with certain requirements)
- Getting a divorce does not revoke a will, but the will is read as though your ex-spouse has died before you.
- If you get a divorce, it is a good idea to review your will with a lawyer to discuss how your will would be interpreted if you do not update it.
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.
