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Client Quotes" I am the second generation entrusting Ambridge Law with writing my Will "S. T., Toronto, ON
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 Wills & Estates / Inheritance FAQ
What if I do not have a will?
If I live in Ontario and die without a valid will, I won't be able to:
- Decide who my Estate Trustee (also known as "Executor") will be. (The Estate Trustee is the person who administers my estate.)
- Have someone from outside of Ontario appointed as my Estate Trustee (even if that person would be the best qualified to act).
- Designate who has control over my funeral arrangements (in the event that there is a conflict among my family).
- Decide who receives my estate.
- Designate who will receive some or all of my personal items, such as a piece of jewelry, some furniture, art work or my automobile.
- Leave all of my estate to my legal spouse (if I have at least one child - regardless of age).
- Provide a life interest for my legal spouse in any part of my estate.
- Leave any part of my estate to my common law spouse or to my same-sex partner.
- Designate my choice of guardian to look after any of my children who are under 18 years of age.
- Decide at what age my children or my grandchildren will receive their inheritance.
- Allow my Estate Trustee (Executor) to pay additional money for the benefit of my child's or grandchild's education, medical or dental expenses.
- Properly provide for my children from a previous marriage.
- Leave any part of my estate to any step-children that I may have.
- Determine the provisions of any trusts for my children.
- Properly provide for a child or other beneficiary who has special needs.
- Fully protect my child's inheritance from being used by my child's separated spouse.
- Leave any of my money or property to a friend.
- Leave any of my money or property to a charity.
- Give my Estate Trustee (Executor) all of the powers that the Estate Trustee will need to properly administer my estate.
- Allow my Estate Trustee to reduce the amount of income tax that is payable upon my death.
- Reduce the amount of Probate Fees (also known as Probate Taxes) that my estate will have to pay to the government upon my death.
- Do any other estate planning.
- No one will have any authority to act for my estate - including paying bills - until the Court appoints someone (which will take a few weeks, thereby causing a delay in the administration of my estate).
- It will be more expensive to administer my estate.
- My estate will be administered and my assets distributed in accordance with the Ontario legislation in effect at the time of my death.
- The Ontario Government will look after my children's or grandchildren inheritance until they become 18 years old.
- I may cause my Estate Trustee and Beneficiaries to spend more time in Court (which will cause delay and cost money).
- It will also likely take longer to complete the administration of my estate.
- In some cases, the Province of Ontario will become the beneficiary of my estate.
In other words, if I die without a will, I will lose control over what happens when I die. I will also cause my estate to incur costs which are far greater than the cost of making a will. A well-drafted will can look after all of the above matters. With a will, I can have peace of mind knowing that my affairs are in order and that my family is protected.
What are requirements for a valid will?
Essentially, to be valid a will must be in writing, dated and signed in the presence of two witnesses. There are number of specific provisions relating to witnesses.
What is holograph will?
A holograph will is a will completely handwritten by the testator and signed at the end of the will by the testator without the presence, attestation or signature of a witness. A holograph will is particularly useful in cases of emergency where the testator has neither the time nor recourse for a conventional will. However, after death of testator it should be proven before a court that this holograph will was handwritten and signed by the testator. This process could take time and money.
What are mutual wills?
Spouses will sometimes seek to execute wills together, drawn on identical terms, each testator being the beneficiary to the other's estate, or having beneficiaries in common.. Often these wills carry an agreement, explicit or implicit, that the terms of the will not be changed without the consent of the other party. Such wills are sometimes referred to as "mirror wills".
Could I use "Do it yourself " will and power of attorney kits?
Will or power of attorney kits do not give personalized estate planning advice. Many such kits are simple "one size fits all" forms that are not customized to your own personal situation or to the laws of Ontario. Such kits only provide generic information and are therefore unlikely to identify or address all your specific needs.
Another common problem is that many such kits provide the kits "as is" with a limitation of the provider's liability for any loss or damage arising out of information provided in the kit, even where the user misunderstands or misinterprets the instructions in the kit.
The most common disadvantage is that such kits cannot give the user the same peace of mind that a will drafted by a lawyer can. Remember you cannot rewrite your will after your death and nobody can do it instead you. A poorly drafted will can open the door to bitter family disputes and costly litigation.
What is a role of a lawyer in preparation of a will?
Generally speaking, an estate lawyer should meet with the client at least twice. In the first meeting, the lawyer should review with the client his/her family and financial circumstances, consider the client’s wishes and take instructions for the preparation of the will. In the second meeting, the estate lawyer should review the will with the client to ensure that the client fully understands and appreciates what is being signed.
The estate lawyer must determine that the testator has the necessary capacity to make a will. The estate lawyer should prepare notes from his conversation with the testator, which should be retained as a record as to the testator’s capacity at the time that the will was made. The estate lawyer needs to know and consider the particular financial circumstances of the testator and his/her immediate family. The estate lawyer needs to know what are the testator’s sources of income and are they secure and what are the testator’s obligations, or potential obligations to dependents and third parties. These wishes of testator must be considered in relation to the estate lawyer’s understanding of the testator’s family and financial circumstances. The estate lawyer should ensure that a will was executed properly by testator and two witnesses. The biggest advantage of using an estate lawyer to draft your will is the peace of mind that you get knowing that a qualified, licenced, and insured professional is looking after your interests.
Is it necessary to obtain a certificate of appointment of estate trustee in all cases?
No. It depends upon the type and nature of the estate assets to be administered, including whether or not the deceased had a will. A lawyer is in the best position to provide legal advice about whether or not it is necessary to obtain a certificate of appointment of estate trustee.
How do I calculate the amount of the estate administration tax or probate?
The estate administration tax (so called probate) is calculated on the total value of the deceased's estate wherever situated, that is sworn/affirmed to on the application for a certificate of appointment of estate trustee under "Value of Assets of Estate". The formula for calculating the amount of the tax is:
- $5 for each $1,000, or part thereof, of the first $50,000 of the value of the estate, and
- $15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000.
What is a bond?
A bond protects the beneficiaries and creditors of the estate in the event of improper administration of the estate assets. It is posted with the court by the estate trustee as security for the collection, administration and accounting of the assets of the deceased's estate. A bond is required in three situations (with certain limited exceptions):
- Before an estate trustee obtains a certificate of appointment of estate trustee without a will;
- Before an estate trustee obtains a certificate of appointment of estate trustee with a will where the estate trustee is not named in the will; and
- Before an estate trustee obtains a certificate of appointment of estate trustee with a will where the estate trustee is named in the will but is not resident in Ontario, or in a province or territory of Canada, or in a Commonwealth country.
Does every will have to name an executor?
No, but it is recommended. If an executor is not named, someone may have to apply to the court as administrator to handle all probate issues.
Can the executor witness the will?
Yes, provided he or she is not also a beneficiary, or married to a beneficiary.
Can a will be corrected?
No, but you may make a separate document, called a codicil, which must be signed and witnessed like the original will. Do not erase, cross out or otherwise alter the original will. If you want to make major changes, it may be best to make an entirely new will.
What happens to my will if I get married or divorced?
Your will is automatically revoked when you get married, unless it states that it is being made in contemplation of marriage. If your leave something in your will to your spouse or appoint your spouse as executor, and are subsequently divorced, the will stands; however, the gift or appointment to your spouse will lapse and the will will be read as if the spouse predeceased the testator.
What if I want to contest a will?
If you are considering such an application, consult a lawyer promptly as the application may be time sensitive.
Why would the Public Guardian and Trustee become involved with an estate?
The Public Guardian and Trustee becomes involved in estates when there is a minor or mentally disordered beneficiary or heir-at-law. http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/
The Office of the Public Guardian and Trustee is required to review the process in order to ensure that the rights of those people are protected.
If I am named as an estate trustee (executor or administrator), must I hire a lawyer?
No, but an estate lawyer can make your work much easier. A lawyer may assist you to locate and collect assets, prepare any necessary applications to court, assist with transfer of assets into your name as executor or administrator, and obtain releases.
Legal fees are considered a proper expense and (subject to the approval of the beneficiaries, heirs-at-law or the court) may be paid out of the estate funds.
The services of an estate lawyer are recommended when questions about the validity or interpretation of a will arise, and an application to court becomes necessary.
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