Wills And Estates
- Wills And Estates Services
- Making a Basic Will in Ontario
- Powers of Attorney Should Accompany Your Will
- When to Update Your Will
- How to Choose a Guardian for Your Children
- How to Prepare for a Meeting with a Wills & Estates Lawyer
- Duties of an Executor in Ontario
- Do-it-Yourself Will Kits Carry Risks
- When You Die Without a Will in Ontario
- Legal Terms Used in a Will in Ontario, Explained
- Contesting a Will
- Drafting a Will
- Elder Law
- Estate Administration and Distribution
- Estate Litigation
- Guardianship Applications
- Independent Legal Advice
- Living Wills
- Power of Attorney—Financial
- Power of Attorney—Personal Care
- Probate Applications
- Passing of Accounts
Every adult over the age of 18 should have a Will. To make a Will in Ontario, you must have legal capacity to do so. This means that you understand the nature and extent of your assets, and you are making a Will freely and voluntarily, without undue influence or duress of anyone, including family members. A wills and estates lawyer at Shirtliff Hinds Law in Newmarket can assist to determine these and document them in your conversations.
- Writing a Will revokes any previous Wills you had prepared.
- Marriage automatically revokes a Will you had prepared in Ontario. A married spouse has automatic rights of inheritance. Read our Family Law Section.
- Common-law partners do not automatically inherit any property under Ontario Law, like married spouses do. If you want your common-law partner to inherit your property, you need to specify this in your Will. Read our Family Law Section.
Here are the components of a Will that you will need to think about before meeting with a wills and estates lawyer:
A Will must identify the person making it, so instruct your wills and estates lawyer to use the name on your birth certificate and any abbreviations or nicknames in the Will, too.
Select an executor, the person who will have the responsibility of looking after your estate after your death. You may need to name a primary executor, and a back-up executor. Have a conversation with your executor, to get them to agree to carry out your Will after your death.
Select a guardian, to look after children under the age of 18. In effect, this gives the guardian legal custody of your children. Custody means the right to make education, religion, and health decisions for your children.
Your executor will need to settle debts, claims and taxes owed first, before making distributions to beneficiaries named in the Will.
Make lists to distribute personal items, such as heirlooms, jewelry, art and so on [called legacies], to persons named in your Will.
A residue clause that tells the executor what to do with the residue of your estate, after your debts have been settled, taxes paid, and legacies have been distributed.
A family law clause can protect your married, adult child’s inheritance in the event of a marriage breakdown after your death.
To be valid, a Will must be signed by at least two witnesses. A beneficiary of a Will cannot be a witness. The spouse of a beneficiary cannot be a witness of a Will, either.
Powers of Attorney (POA) are written documents that give one or more persons the legal authority to act on your behalf and to make decisions on your behalf. The Newmarket wills and estates lawyers at Shirtliff Hinds Law in York Region strongly recommend that Powers of Attorney accompany your basic Will. A competent adult—family member, friend, or trusted advisor—can be appointed as your Powers of Attorney. Compensation may also be given. [Second comment about property is cut off on the scan.]
There are three types of Powers of Attorney in Ontario:
- A General Power of Attorney for Property: A Power of Attorney for Property is a written document in which you give someone the power to make decisions about your property and finances if you become unable to make these decisions yourself. A Power of Attorney can be limited in scope and expire when you no longer have capacity to make decisions for yourself.
- A Continuing Power of Attorney for Property: applies when you are mentally capable and after you become incapacitated. This includes looking after your real estate, finances, cars, bank accounts, investment portfolios, and anything else you own. It becomes effective as soon as it is signed by you and witnesses. You can specify in the document that Power of Attorney is to come into effect only if you become mentally incompetent.
- Power of Attorney for Personal Care: if you become mentally incapacitated, due to illness or accident, a POA for Personal Care designates who will decide critical issues such as health care and medical treatment, diet, housing, clothing, hygiene, and safety. Power of Attorney for Personal Care is critical and governs both quality of life and end-of-life issues for Ontarians.
After a diagnosis of a degenerative and debilitating illness, or in the event of a catastrophic accident where you are unconscious for an extended period of time or when brain function has been reduced or ceased altogether, a Power of Attorney for Personal Care gives clear guidance for health and medical treatment. You can specify in your Power of Attorney for Personal Care what treatment you want and don’t want.
If you become mentally incapable of making personal care decisions, someone else must make them for you. This person is called your Substitute Decision-Maker (SDM). For some decisions, including those about your medical treatment, Ontario law says your doctor and other health care providers must get your substitute decision-maker's consent before taking action. Your Power of Attorney for Personal Care functions as your Substitute Decision-Maker.
The Ontario Ministry of the Attorney General has an excellent brochure about issues you should think about for your POA for Personal Care.
Think of a Will as a photo of your life and the applicable laws at the time it’s created: it doesn’t expire, but it also doesn’t adapt as your life changes. It’s a good idea to update your Will routinely every two to five years by making an appointment with a Newmarket wills and estates lawyer. In addition, you should update your Will when you experience major life changes like these:
- You were recently married
- You are not married, but live with a common-law partner
- You are a first-time parent; or, you have another child, biological or adopted
- You bought real estate: a house, a cottage, or investment property
- Someone in your family has been diagnosed with a condition (for example, Down Syndrome, Autism, Alzheimer’s) who will require permanent care: a sibling, an aging parent, your spouse, or a child
- You have investments: RRSPs, LIRAs, TFSAs, trading accounts, a pension
- You have a financial windfall: you have won the lottery or inherited a significant amount of money
- When you start a business, or become a shareholder in a business
If you have children under the age of 18, especially very young children, naming a guardian for them in your Will is critically important. Otherwise, a judge will appoint a guardian for them; in other words, you will have abdicated that decision. Importantly, selecting a guardian for your children is a series of conversations with the person you have in mind to look after your children in the event of your death. Here are some practical questions to consider when choosing guardian for your child or children; a Newmarket wills and estates lawyer can help you with these:
- Would the person have enough time and energy to devote to your child?
- Who is most able to take on the responsibility of a caring for a child – emotionally, financially, and physically?
- Does your child feel comfortable with this person already?
- Whose parenting style, values, and religious beliefs most closely match your own?
- Does the person you're considering have other children? If so, would your child benefit from having relationships with those children, or would your child struggle?
- Would your child have to move far away, and would that pose any problems?
- How, or who, will manage money for your young children, should you choose to name them as beneficiaries?
To make your meeting with a Newmarket wills and estates lawyer at Shirtliff Hinds Law more efficient, here is a list of documents you should bring:
- Personal identification
- Proof of citizenship
- Marital status
- Full contact information for your spouse
- Full contact information for each of your children
- Full contact information for each of the people you select to hold your Powers of Attorney
- For parents with minor or adult children with disabilities, you may need to consider an insurance policy or setting up a trust, to look after their needs upon your death.
- Make a list of your assets including: the names of the people or institutions that manage them.
- Make a list of your liabilities including: lines of credit, student debt, credit card debt, and mortgages.
- Make a list of who inherits what from your personal possessions. Consider your valuables first (fine art, valuable musical instruments, heirloom jewelry, silverware, family photos and so on) and then your personal possessions.
There are many legal duties of an executor in Ontario. This is not simply a favour you are asking of a friend or family member; there are more than 30 tasks, required by Ontario law, for an executor to complete. It is not unusual for all these tasks to take a year or more to complete. For these reasons, you may consider appointing co-executors, to share the workload. Further, the executor is entitled to payment for his or her services, typically about 5% of the value of your estate. Your Newmarket wills and estates lawyers at Shirtliff Hinds Law in York Region can help you select a suitable executor, or executors.
Just some of the duties of an executor:
- Arrange the funeral
- Arrange for care of pets
- Open an estate bank account
- Notify beneficiaries of their interest in the estate
- List estate assets; safeguard until sold
- Pay bills, mortgage, income taxes, property taxes, insurance premiums, credit cards.
- Re-direct mail
- Cancel memberships and subscriptions
- Cancel health insurance, driver’s licence, credit cards, utilities
- Make an inventory of the deceased’s assets
In Ontario, wills and estates lawyers are the only professionals allowed to draft a valid will. Paralegals, accountants, and financial advisers who prepare Wills are unauthorized to do so. Here are specific situations where our Newmarket wills and estate lawyers at Shirtliff Hinds Law in York Region tell clients that do-it-yourself Will Kits are problematic: 1) you have been diagnosed with Alzheimer’s or other form of dementia; 2) you are divorced or being separated; 3) you have a common-law partner; 4) you have minor children; 5) you are looking after elderly parents; 6) you have recently been in the hospital; 7) you own a residence or income property; or 8) you own a business.
For true peace of mind, you need a Will that stands up to legal scrutiny and will not be deemed invalid after your death.
Importantly, when a wills and estates lawyer prepares a Will for you, there are four things that you don’t get with a do-it-yourself Will Kit, making the cost savings dubious and even risky:
When are do-it-yourself Will Kits useful? If you are a single person with no attachments (meaning no children, no siblings, and you’re not taking care of aging parents) and no assets (like a car, house, cottage, RRSPs, or a pension other than your personal possessions), then a do-it-yourself Will Kit may be a good option for you.
- Wills and estates lawyers assess capacity while preparing a Will, which is a crucial for having a valid Will. A do-it-yourself Will Kit cannot assess capacity that you are of “sound mind.”
- Wills and estates lawyers assess “undue influence” while preparing a Will. If one or several beneficiaries are trying to pressure you about whom to leave what to, an experienced wills and estates lawyer has a better chance to recognize this.
- Wills and estates lawyers help you find select suitable witnesses, to validate your Will. To be valid, a Will needs to be signed by two witnesses. If your neighbours witness a do-it-yourself Will Kit, chances are that they will have moved away and cannot be found 30 years later. After your death, if the witnesses cannot be found, the Will may be struck down.
- Wills and estates lawyers keep notes of your conversations. If your intentions are questioned after your death, a lawyer’s notes are frequently used as evidence. There are no notes that accompany a do-it-yourself Will Kit.
- You have no control over your funeral and burial arrangements. Your funeral and burial arrangements will be made according to the preferences of an Administrator to your estate, not yours. This is important to some people; others, not so much. But it will take about $15,000 in court costs to have an Administrator appointed to your estate—costs that your heirs will need to pay—just to make the funeral arrangements.
- Someone else will decide who will become the guardian(s) of your children. If you are the primary caregiver for your minor children and you die without a Will and without the other parent around, you lose the opportunity to specify who you want to act as their guardians. The court will make the decision without your input.
- A dependent child or other relative may not be properly provided for. If you have special needs children, or adult dependent children, and need to provide for their long-term care, they may not receive this financial support unless you make it clear in your Will.
- Your closest relative will likely be appointed as the Administrator of your estate. The difficulty with this “default option” is that your closest living relative may not be the best qualified, or interested, in administering your estate.
- Ontario law decides how the estate is distributed among your spouse, your parents, your children, and your siblings. Your spouse inherits the entire estate if you have no children; even if you have children, your spouse may inherit everything, or the first $200,000 of your assets and the remainder is split equally among your family. If you don’t have a spouse or children, it is distributed to other relatives.
- Common-law partners do not automatically inherit your estate or even a portion of it. The rules of inheritance for property for common-law partners are different than married spouses. Common-law partners do not inherit anything under Ontario law. Click on our Family Law Section to learn more. Inheritance in common-law is not automatic; you need to make it clear in your Will.
- Personal items may not be distributed as you would have liked. Family heirlooms, sentimental objects, or fine art won’t be passed on to your siblings, cousins, nieces, nephews, or grandchildren. These treasured items may end up at Value Village, Goodwill, or Salvation Army if your intent is not clearly written in a Will.
- Possible tax savings may be lost. Your heirs may be liable for paying estate tax that could have been legally minimized, through smart estate planning. You could be leaving them a financial quagmire.
- Your preferred charities may not benefit. If you hope to leave a legacy by supporting your preferred charities, that will not happen without a Will.
- If you have no living next of kin, your entire estate goes to the Ontario government.
When a person dies without a Will, an administrator is appointed by the court to manage the estate of the deceased person. If you, yourself appoint a person to look after your affairs upon your death, that person is called an executor.
A person who receives money, property, or other benefits from a Will.
An amendment, or change, to an original Will.
The entirety of individual’s property and assets including: real estate, bank accounts, life insurance policies, stocks, and personal property like cars and jewellery. You do not have to own Downton Abbey for all your worldly goods to qualify as an “estate.”
A tax that is imposed upon a person’s death, on the transfer of certain types of property from their estate to their heirs and beneficiaries.
The person, or persons, you appoint to ensure that your Will is carried out according to your wishes and the laws of Ontario after your death. The executor will collect the property, pay off any debts, and distribute property and assets according to the terms of the Will. A bit of trivia: An executrix is an executor who is a woman.
A person or institution that is legally responsible for the management, investment, and distribution of funds; i.e. the trustee identified in a trust. Importantly, “fiduciary” means based on trust, confidence, and having the best interest of the client in mind.
The person, or persons, you appoint in your Will to look after your minor children (under the age of 18) who will need care and guidance until age of majority.
A person with Alzheimer’s, another form of illness, or incapacitated due to an accident is not of “sound mind” and therefore cannot draft a valid Will. Or, people might be on such significant medication that it impairs their judgment. Such persons are deemed to be incapacitated because they cannot act on their own behalf. It is inadvisable to draft a Will when you are incapacitated.
The legal term for when a person dies without a Will.
Personal items, gifts of money or other assets you leave to certain people named in your Will.
To make a valid Will, you must have legal capacity. That is, you understand the nature and extent of your assets. Being of “sound mind” is a requirement for drafting a valid Will.
A process whereby a court reviews a Will to make sure that it is authentic, and allows others to make legal challenges to the Will.
Probate Fee or Probate Tax (Estate Tax)
A tax that is imposed at a person’s death, on the transfers of some types of property from their estate to heirs and beneficiaries.
Terminal Tax Return (T3 Return)
The last tax return to Canada Revenue Agency (CRA) filed on behalf of the deceased by the executor.
The person making a Will.
A written document providing that property be held by one (the “trustee”) for the benefit of another (the “beneficiary”). A trust may be created during a person’s lifetime or after his or her death.
A person named in a trust document who will manage property owned by the trust, and distribute the trust income or property according to the terms of the trust document. A trustee may be an individual or a business.
Undue influence Undue influence is when someone is coerced or pressured into making a Will and leaving instructions that were not according to their own wishes. If it can be proven that “undue influence” or duress was used to pressure someone into drafting a Will, it can be struck down by a court, making it invalid.
For a Will to be valid, it has to be signed by at least two witnesses. After the testator’s death, these witnesses need to be tracked down so that an affidavit of execution can be submitted to the court, saying that the legal requirements of the will being witnessed in Ontario were met. Anyone named as a beneficiary in a Will cannot be a witness, as that is a conflict of interest.